Child’s Name Change Reversed in Crossville, Tennessee Custody Dispute: Flynn v. Stephenson

FactsMother and Father are the never-married parents of Child.

1 ½ months after Child’s birth, Father petitioned for a parenting schedule and to change Child’s last name.

The only evidence regarding Father’s name-change request was this testimony from Father:

Q: Okay. Why are you asking for your son’s name to be changed?

A: Because my son is a Flynn. You can look at him and compare pictures to when I was a kid. My son is a . . . he’s a Flynn. And I think that a child, as long as their father is there and wants to be a part of the child’s life, I feel like the child should have the father’s last name. I had no say so in his first or middle name and I feel like he should have my last name.

Q: Anything else? Any other reasons why?

A: No. Just the fact that that’s what, overtime throughout all of . . . . You know, you can go back as far as you want to and a child has carried their father’s last name. Whether it be a male or a female child, they carry their father’s last name. And that’s just, you know, how I perceive it to be and how everybody really perceives it to be. Or the majority, I will say. Not everybody obviously, but the majority. And I think my son should have my last name.

After a brief hearing where only Father testified, the trial court changed Child’s last name to match Father’s.

Mother appealed the name change.

On AppealThe Court of Appeals reversed the trial court.

Tennessee name changeTennessee courts should not change a child’s last name 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:

  • the child’s preference;
  • the child’s relationship with each parent;
  • the time the child has had its present surname;
  • the degree of community respect associated with the present and proposed surname; and
  • 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 must prove that the change will further the child’s best interests. Proof required to obtain a name change is not insubstantial. A parent’s mere preference or wish that a child shares his or her surname is not enough.

The Court of Appeals found Father failed to carry his burden of proof:

Father’s tautological argument that the child’s name should be changed to Flynn because “he is a Flynn” does not bear much weight. His testimony evinces only his personal preference, not that a name change is in the child’s best interest. We reverse the trial court’s decision to change the child’s name.

K.O.’s Comment: The trial court also ordered a parenting schedule that gave Father 23 fewer days than what even Mother proposed. Father appealed. Before vacating that ruling because of the trial court’s failure to make specific findings of fact, the Court made these comments about the “maximum participation” provision in Tennessee Code Annotated § 36-6-106(a):

In cases where we have found that the trial court did not comply with the “maximum participation possible” aspiration, we have vacated the trial court’s residential parenting schedule and remanded for a more equal division of parenting time. . . .

Furthermore, we have stated that the “maximum participation possible” principle does not alter or diminish the trial court’s broad discretion in fashioning permanent parenting plans in accordance with the best interest of the child. . . . We recognize that there are a myriad of factors that could support a parenting plan that does not provide equal or nearly equal parenting time for both parents. In cases where such a conclusion is supported by the evidence, it is incumbent upon the trial court to say so, and express findings of fact contained in its written order.

Advocates can argue that the Court interprets the “maximum participation” provision to require (or perhaps creates a presumption for) an “equal or nearly equal” parenting schedule unless the evidence requires specific findings otherwise.

Flynn v. Stephenson (Tennessee Court of Appeals, Eastern Section, August 29, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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