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Divorced With Children? How to Change Your Child’s Surname

Posted on August 30, 2021 by Will Reingold

When you get a divorce in Washington, you can ask the court to change your surname as part of the proceedings.  While you can change it to any name your heart desires, the common course of events involves restoring one’s maiden name.  Sometimes a parent may want to change the surname of their child as well.  This is not an option during the divorce proceedings, and you will have to file a separate petition in District Court.

However, the other parent might not agree to have the child’s name changed.  Given the high conflict nature of divorce litigation, this should not come as a surprise.  The parent advocating for the name change will provide his or her reasons for why the child’s name should be changed, and the parent advocating for the name to remain unchanged will make his or her case in response.  So, how does the Court decide this issue?

Ultimately, the judge must determine whether the name change is in the best interest of the child.  Our judicial system recognizes that this is not a light matter to be quickly adjudicated: “A change in surname, so that a child no longer bears the name of a custodial parent, not only is of inherent concern to the custodial parent, but is, in a real sense, a change in status having significant societal implications. Once a surname has been selected for a child, be it the maternal, paternal, or some combination of the child’s parents’ surnames, a change in the child’s surname should be granted only when the change promotes the child’s best interests.”

Judges are aware that sometimes the parent pushing for the name change might be pushing his or her own interests, rather than the interests of the child.  As one court in Utah put it: “lip-service to the best interests of the child should not be used as a subterfuge to nevertheless perpetuate the paternal preference.”  This, of course, applies to the maternal preference as well.

In Washington, there is not a voluminous amount of law on this subject, but there are certainly some key factors on which a judge will focus.  These factors come from the 1985 case Daves v. Nastos.  Explaining how to analyze this type of issue, the Washington Supreme Court asserted that the trial judge may consider the following factors:

  • The child’s preference;
  • The effect of the change of the child’s surname on the preservation and the development of the child’s relationship with each parent;
  • The length of time the child has borne a given name;
  • The degree of community respect associated with the present and the proposed surname; and
  • The difficulties, harassment or embarrassment that the child may experience from bearing the present or the proposed surname.

Notably, the Supreme Court also stated that the trial judge’s analysis is not limited to these factors.  So, what are those factors?  The Court does not say.  One case from Oregon, Doherty v. Wizner, set forth a longer list of factors to consider: (1) the identity and preference of the custodial parent; (2) the avoidance of embarrassment, inconvenience or confusion; (3) identification of the child as being part of a distinct family unit; (4) the age of the child and the length of time the child has used the surname; (5) the preference of the child; (6) the effect of a name change on the relationship between the child and each parent; (7) parental misconduct; (8) the level of support for and contact with the child; (9) the motivation of the parent seeking the name change or the parent seeking to oppose it; (10) the community reputation associated with the names at issue; (11) assurances of the custodial parent that she or he will not change hers or his own surname or the child’s surname; and (12) important ties to family heritage, ethnic identity, and cultural values.

If you are thinking about changing your child’s name—or, conversely, are trying to keep your child’s name unchanged—you should frame your arguments around the factors established in Daves v. Nastos.  However, you can always consider some of these extra factors in Doherty v. Wizner to supplement your argument.  Whichever side of the argument you are on, in making your case to the judge, you simply never know which piece of information may tip the scale in your favor.

If you have questions about this, or any other aspect of divorce and child custody issues, the Family Law Practice Group at Lasher are here to help.