How to change a childs last name if father is not on birth certificate

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A father’s rights with respect to his child’s surname usually come down to the opinion of a single judge. States share some uniformity in procedure, and laws do provide a father with an opportunity to object to a change, but whether he'll be successful generally depends on the particulars of his relationship with his child.

Paternity

Before you can object to your child's name change, you must have legal standing to do so. If you were married to his mother when he was born, the law “presumes” you are his father unless or until someone proves otherwise. If you and his mother weren’t married, you can also create this presumption in some states by putting your name on his birth certificate as his father. In other states, such as Texas, if a mother is not married at the time she gives birth, her child has no legal father, regardless of what the birth certificate says. In these jurisdictions, you would have to legally establish paternity to have any rights or responsibilities, even if your child took your last name. Generally, you can accomplish this with a paternity test. If your child’s mother objects to a paternity test, you can petition the court to order one.

Notification

A parent must get the court’s permission to change her child’s surname from the one that appears on his birth certificate. If you are your child’s legal father, she must officially notify you that she’s doing this; she can’t accomplish it behind your back. Most states require that she serve you with a copy of her petition or motion to the court. After you receive this, the law gives you the right to object.

Objecting

If you receive notice that your child’s mother is trying to change his surname, states typically require that you file a written objection with the court, detailing your reasons for not wanting the change. When the court receives your objection, the name-change process generally can’t go through without a hearing. If you don’t file a written objection, it’s possible that a judge will assume you don’t care and simply sign off on his mother’s request without requiring an appearance in court. Other states always require a court appearance regarding such issues, so in those areas, you could appear at the hearing and voice your objections in person. If you receive notice that your child’s other parent wants to change his name, contact the court or an attorney immediately to learn your options for objecting.

Court’s Decision

The standards for permitting a child’s name change vary from state to state, but most judges will want to know that your child will benefit in some way from the new name. This puts the burden of proof on your child’s mother to show the court how a different surname will improve your child’s life. If you’ve always been actively involved with your child and you have a close relationship with him, this may be difficult for his mother to prove. If you’ve rarely had contact with him and she wants to change his name to match her name, especially if she’s married or remarried, you might have a harder time getting a judge to side with you. If your child is old enough, judges in some states will consider his opinion.

In this article...

In this article, we will explain what happens if the father’s name is not on the birth certificate. We discuss what a father can do if he is not on the birth certificate, as well as how not having the father on the birth certificate affects the child.  In a previous article, we discussed what rights a father has if he is listed on the birth certificate of a minor child.

In this article, we will explain what happens if the father’s name is not on the birth certificate. We discuss what a father can do if he is not on the birth certificate, as well as how not having the father on the birth certificate affects the child.  In a previous article, we discussed what rights a father has if he is listed on the birth certificate of a minor child.   

When a married couple has a child, the man is automatically presumed to be the father and has full legal and parental responsibility rights to the child. When an unwed couple has a child, however, the father does not have the same rights as he would if he were married to the mother.

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By signing the birth certificate a father is acknowledging his legal relationship with the child; this means he is therefore obligated to financially support the child. Signing the birth certificate does not establish paternity that grants a father with visitation and decision-making rights to the child. Establishing paternity must be done through a court order, which will also determine custody and/or visitation rights, as well as additional parental responsibilities, based on what’s in the best interest of the child.

If an unwed father is not listed on the birth certificate, he has no legal rights to the child. This includes no obligation to paying child support and no rights to visitation to custody or child support. If no father is listed on the birth certificate, the mother has sole legal rights and responsibility of the child.

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What Can a Father Do if He’s Not on the Birth Certificate?

If a father is not on the birth certificate but would like to have legal rights and access to the child, the best idea is for him to establish paternity to acknowledge he will take legal responsibility of the child. To begin the process, he can sign an affidavit of paternity and file it with the court. This affidavit indicates that he believes he is the father of the child and would like to legally establish himself as such. The mother’s signature on the affidavit is required to establish paternity. If she refuses to sign it, the father can request a DNA test to be completed by an order of the court.

Once paternity is established, the father now has legal rights to the child. Custody, visitation and parental responsibility can be determined with or without the court; this is mostly dependent on the parent’s relationship. If it’s handled by the court, the court will look at all circumstances regarding both parents and make its decision on what is in the best interest of the child.

Birth certificates can also be amended. So, if a father is not listed on the birth certificate at the time of birth, his name can be added to and he may sign the birth certificate at a later time. There is generally a fee to amend the original birth certificate and can take up to a month to receive the amended birth certificate.

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How Having the Father’s Name on the Birth Certificate Affects the Child

There are a number of reasons a father’s name may be left on the birth certificate: the mother is not sure who the father is, the father cannot be located, the parents are no longer in a relationship, they may have a strained relationship and the mother doesn’t want the father’s name on the birth certificate, etc. Whatever the reason may be, it’s important that both parents understand the implications of leaving the father’s name off of the birth certificate and how it will affect the minor child.

As mentioned, having an unwed father’s name on the birth certificate acknowledges his legal relationship of the child and makes him obligated to pay financial support of the child. This could help cover the cost necessities for the child’s life. This can also entitle the child to be covered under the father’s health insurance plan. In case of the father’s death, the child has a right to social security death benefits and a right to inherit.

If the mother’s concern is the father’s access to the child, the involvement of a court can help determine the father’s rights and access to the child based upon what is in the best interest of the child. If parents are unsure whether to include the father’s name on the birth certificate, or if the father wants to establish paternity but doesn’t know how, the best idea is for them to seek advice from a family attorney.

About the author

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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