Posted by: K.O. Herston | June 27, 2011

Changing Child’s Last Name in Tennessee: Sullivan v. Brooks

Facts: Mother and Father, who were never married to each other, are parents of a child born in 2008. Eight days after the birth of the parties’ child, Father filed a Petition to Establish Parentage. The petition included a request to change the child’s surname, which request Mother opposed. After a hearing, the trial court changed the child’s surname from that of the Mother to that of the Father. Mother appeals.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee law provides that a trial court should not change a child’s surname unless the change promotes the child’s best interests. Among the criteria for determining whether changing a child’s surname will be in the child’s best interests are: (1) the child’s preference, (2) the change’s potential effect on the child’s relationship with each parent, (3) the length of time the child has had its present surname, (4) the degree of community respect associated with the present and proposed surname, and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname. The parent seeking to change the child’s surname has the burden of proving the change will further the child’s best interests. A parent’s wish that a child’s surname be changed is not sufficient. A parent’s preference is not enough. A name change requires evidence that the change is in the child’s best interest. The Court of Appeals has stated “the amount of proof required to justify changing a child’s surname is not insubstantial.”

At trial, Mother and Father both testified, and no other witnesses were heard. Father testified regarding his request to change the child’s last name as follows:

I would like for it to be Sullivan. I’m his father. I’ve been there since day one. I was there at birth. When she told me that she wasn’t going to name it after me, I still stayed. I mean, ever since day one I have been there. That’s my son. I would love for him to have my last name. I mean, my family is really big on last names. Ever since I have been brought up they have always told me that you are a Sullivan, that, you know, you live up to your last name.

Father was then asked if he was “into hyphens or anything like that,” and replied:

I mean, why should I have to explain to my son why he has two last names? I shouldn’t have to. He’s my son.

Mother testified that she wanted the child’s last name to remain Brooks because he lived with her and her parents, all of whom have that last name.

After hearing this evidence, the trial court ruled:

All right. The issue of name change. The Court finds it’s in the best interest of the child to allow a name change, that the child have his father’s surname. In all probability, Ms. Brooks — you’re at a young age — you will marry. And if you marry, you will probably, tradition and custom, take on your husband’s name. I have got two young folks that most likely will marry.

I know the child is not of age to yet read and write his name. Tradition and custom in this country, in this area, basically, is to take on the father’s name. There is certainly nothing about the Brooks name or Sullivan name that carries any derogatory reputation in this community.

I have had cases where children carry the maiden name and mom marries a couple of times, and then you have three children by three different names. And that raises the issue — certainly, there’s an inconsistency there when they are in school, and kids can be rather cruel to other kids and hurt — you know, be made fun of when brothers and sisters have different names, none of them the father’s name. Kids know who their father are. He will know soon. You know, and the father has been, the proof is, active from birth and very involved, he’s supported, and therefore I find it in the best interest that [child's] last name be changed to Sullivan.

After reviewing similar cases where the name change was denied, the Court observed:

The General Assembly has established the policy in this state that a child of unmarried parents bear the surname of its mother, absent agreement to another name. The legislature has also determined that a nonmarital child’s surname is not automatically changed following a paternity or legitimation proceeding and, in fact, should not be changed without proof that such a change is in the child’s best interest.

Based upon the authority set out herein, the evidence offered at trial, and the trial court’s statement of reasons for granting the change, we conclude that Father did not meet his burden of proving that changing the child’s name to Sullivan is in the child’s best interest. Accordingly, we must reverse.

Sullivan v. Brooks (Tennessee Court of Appeals, Middle Section, May 23, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


Responses

  1. [...] Changing Child’s Last Name: Sullivan v. Brooks (herstontennesseefamilylaw.com) [...]

  2. Once again it is all about the Mother. You don’t think the child won’t get questioned his entire life why he doesn’t have his father’s name. I heard that conversation this week about an adult child with a different last name and three people were trying to figure it out. My first thought from my son’s experience is the Mom was self centered and looked at her best interest and the TN laws does not support Dad’s. She is practically supported by the DA for the entire ordeal and he has to pay a lawyer. He is automatically the low life while she legally controls and manipulates every minute he sees his child from birth on. Her response on changing the name was she won’t get as many government subsidies if his name is different. So unfair.


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