What is in a name? Every once in a while parents argue about what the surname of their child ought to be in family law proceedings. This most frequently occurs in paternity cases where the parents were never married and have a dispute as to which surname their child should have. The question of surnames is also increasingly at issue in divorce cases as many women now elect not to change their names upon marriage and wish for their maiden names to be incorporated into the names of their children.
Arizona statutes have yet to address the matter, but two Arizona cases have examined when it is appropriate to modify a child's surname. The first case was Laks v. Laks (540 P.2d 1277) and was decided by the Division Two of the Arizona Court of Appeals in 1975. In this case, the mother unilaterally modified the children's names from their father's surname to hyphenating mother's maiden name with father's surname. Mother argued that she had an absolute right to give the children her name and that not allowing her to do so would violate the Equal Protection Clause of the Fourteen Amendment. She further argued that the father should have to show that changing the names of the children was not in the best interests of the children in order to prevail.
The Court found that the father had a protectible interest in having his children bear his name that has historically been recognized by the courts, but that there was merit in mother's equal protection argument. However, the Court felt that mother's argument would be more persuasive if the parties were arguing about the initial naming of their children, rather than modifying the names of teenage children. The Court feels that a best interests of the children standard is more appropriate to determine whether the names of the children should be changed since the parties were arguing about a modification of the name change rather than the initial name of the children.
The Laks court articulated some factors that must be considered in a best interests of the children analysis, including the preference of the children, the desire of the father to give his name to the children, knowledge of parentage, and the inconvenience or embarrassment experienced by a child in retaining or accepting a name.
Division One of the Arizona Court of Appeals revisited the issue of surnames in Pizzocini v. Yarborough, 177 Ariz. 422 (1993). This case was a paternity action where father requested that his child's name be changed from the step-father's surname to the father's surname. The trial court ruled that the child's name should not be modified because the child shared the surname with his mother and half-sibling.
The Court notes that while children born to married parents generally bear the father's name, children born out of wedlock more frequently bear the name of the mother, as the name of the father can only be placed on the birth certificate with the consent of the father when the parents are not married. The Court does not think that tradition is an appropriate means to determine the name of the child, and instead turns to the best interests of the children standard just as the Laks court did.
The Court articulated several factors that should be considered in determining whether a name change for a child is appropriate, including the preferences of the child, the length of time the child has had the current name, preferences of the parents and the reasons for those preferences, the possibility that the use of the name could cause insecurity, loss of identity, or embarrassment or confusion for the child, and the effect of the name change on the child's relationship with either parent. Pizziconi v. Yarborough, 177 Ariz. 422, 425 (1993). The Court also states "court should not give greater weight to the father's interest in having the child bear the paternal surname because [...] such a standard is also inappropriate since the tradition of children bearing the father's name has eroded as women have, with increasing frequency, opted to retain their birth names after marriage or to select a surname other than the husband's" Id.
Therefore, if a parent wishes to change the name of a child as part of a family law proceeding, that parent must be prepared to demonstrate that a name change is in the best interests of the child.
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