Monday, March 19, 2007

Paternity: Indiana Law on the Child's Last Name

I was asked this evening about the father's right in a paternity case to have the court order the child to have his last name. Not a question that comes up often but not a completely rare question either.

Here Indiana law is very simple: the father must show that it is in the child's best interests for the child to have father's last name.

Until 2004, we had two cases on the subject: In re Paternity of Tibbetts, 668 N.E.2d 1266, 1267 (Ind. Ct. App. 1996), trans. denied; and Paternity of M.O.B., 627 N.E.2d 1317, 1318 (Ind. Ct. App. 1994). The Court of Appeals decided in Re the Paternity of J.C. in 2004. (819 N.E.2d 525). Paternity of J.C. has some interesting facts and a very interesting suggestion.

The facts are these:

Here, the trial court did not reach the question of the child’s best interest; instead, the court granted Father’s petition because it was “unable to find any agreement by the father to the child retaining Carlisle as a last name.” (Appellant’s App. p. 65). Mother contends that the trial court’s decision was an abuse of discretion because there is clear evidence that Father did, in fact, agree to the child retaining Mother’s last name and, in any event, whether Father agreed to the child’s retention of Mother’s surname is not the proper analysis to apply in making the name change determination.
The Court of Appeals decided that the trial judge had abused his discretion by changing the child's name and returned the case to the trial court for a new hearing. The Court of Appeals directed the trial court's attention to the factors first set out in Paternity of M.O.B.:

...whether the child holds property under a given name, whether the child is identified by public and private entities and community members by a particular name, the degree of confusion likely to be occasioned by a name change and (if the child is of sufficient maturity) the child’s desires.
Then the Court of Appeals made a rather interesting addition to this list:
Given Father’s particular concern with Mother having a surname different from that of the child, obviously the trial court will want to take this additional factor into consideration in determining whether retaining Mother’s name is in the best interest of the child.
This sentence raises some issues and questions. First, I seem to recall an implication from the Court of Appeals in M.O.B. that if father wanted the child to have his last name, then he ought to have married the mother. So this seems a bit of a departure. Secondly, I am not sure how the father's concern connects with the child's best interests. Finally, if the connection between father's concern and child's best interest seems so obscure, then how do I prove that the child keeping the mother's last name is not in the child's best interest? I have some ideas on how to answer that question but they depend on the father's finances and the facts of the case.

The mother remains, I think, in the better position. I would argue for her that the criteria established by M.O.B. trump this new arrival from Paternity of J.C..

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