So Who Has the Right to Name the Child?

Who has the right to name a child, whether the parents are married or unmarried, separated or divorced? Utah Administrative Code § R436-1-5 has the answer:

R436-1-5. Name of Child.

A newborn child's name should be recorded on the birth certificate as determined by its' parents. If the parents disagree on the child's name and they have never married each other or are separated or divorced, the custodial parent shall determine the child's name. If the parents are married to each other and cannot agree on the child's name, it may be left blank on the birth certificate and added later by an Affidavit to Amend a Record or by court order.

As you may have concluded, this effectively means that where parents are unmarried or divorced or separated, until Dad gets his hands on the baby somehow (and before the birth certificate is filled out), Mom is almost surely the de facto custodial parent, and if she gets her hands on the birth certificate first, the baby will have whatever name she gives it.

As with everything in divorce, the “best interests of the child” are (to the exclusion of other, equally important considerations) of paramount consideration in determining whether child's name should be changed. Ascertaining the best interests of the child, in action to change child's name, is a factual, not a legal, determination (and thus subject to whatever determination the judge can claim with a straight face the evidence in the record will support). Hamby v. Jacobson, 769 P.2d 273 (Utah App 1898).

Generally, upon the birth of their children, the parent can give the children whatever surname the parent(s) wish(es). See Jay M. Zitter, Rights and Remedies of Parents Inter Se with Respect to the Names of their Children 40 A.L.R. 5^th 697, 712 (1998). No law, statutory or otherwise in Utah, dictates that a child’s surname be that of either parent. The parent(s) may literally select virtually any name as a surname for the children. Hamby v. Jacobsen, 769 P.2d 273, at 276 (Utah 1989).

Following this rationale, the Utah Administrative Code states that “[i]f the parents disagree on the child's name and they have never married each other or are separated or divorced, the custodial parent shall determine the child's name.” U.A.C. R436-1-5 (1993) (emphasis added). Also, since children spend the majority of their time with their custodial parent, there is a rebuttable presumption in at least one jurisdiction that the children should bear the name of the custodial parent. See Lynn M. Curtis, Sexism and bias in the Name of Tradition: missouri’s Standard of Inequality Regarding Children’s Surnames, 66 U.M.K.C. L. Rev. 169, 191 (1997), and the burden to prove that the custodial parent’s name may not be in the child’s best interest shifts to the non-custodial parent seeking the name change. Id

In the past, some common law courts followed the view that a father had a protectible or primary interest in having his children bear his surname unless he had forfeited that right by misconduct or neglect. Hamby, 769 P.2d at 276. This attitude was the result of the common law custom that a woman, in marriage, gave up her contractual and ownership rights. See In re Marriage of Douglass, 205 Cal. App. 3d 1046 (Cal. Dist. Ct. App. 1988). However, along with most jurisdictions (See In the Name of the Father: Wisconsin’s Antiquated Approach to Name Changes in Post-Divorce and Paternity Proceedings, 83 Marq. L. Rev. 279, 285 (1999) (“Most courts no longer acknowledge an unsupported preference for the biological father’s name.”)), the Utah Supreme Court has modernized what it considers the sexist and archaic tradition of paternal preference and has stated that a paternal preference for a child’s surname is improper, just as a preference for the maternal surname would be improper. Hamby, 769 P.2d at 277 (emphasis added). Under the current law, the process of giving a child a name and surname must be free of gender-based notions of parental rights; arguing the child should bear the paternal surname, in these times of equality, is another way of arguing that it is permissible to discriminate because the discrimination has endured for many years. Id. at 278.

As with all my postings, I welcome your comments and suggestions.