Rights on Naming Your Child in Tennessee

Laws on naming a child in Tennessee; baby naming laws; how to change child’s last name on birth certificate in Tennessee; name change of a minor in Tennessee; baby naming law.

Parents have important rights to naming their children in Tennessee law. Those rights are not without limitation, though. The child’s best interests, along with the other parent’s rights, figure into the equation, too.

Rights to naming your child in Tennessee.

Rights to naming your child in Tennessee.

This discussion, with the Tennessee statutes and case law referenced herein, involves changing a child’s last name, or surname. What might the result be if the parents are divorced? If they were never married to each other? Or if they married each other years after their child was born? Marital status at the time of the child’s birth does affect the parents’ legal options in naming a child.

How to Change My Child’s Last Name in Tennessee

Child naming laws are confusing for many parents. Understandably so. The General Assembly and the courts continue to follow traditional norms favoring paternal surnames, but with heavy emphasis on doing what is best for the individual child.

In the past, the child naming rights turned on whether the parents were married to each other or not. If married to each other, then their offspring took the father’s surname. If not married to each other, then their offspring, born out of wedlock, took the mother’s surname. Identifying a child so obviously as the offspring of an unwed mother could invite ridicule, name-calling, bullying, and social rejection. That’s a concern even today.

How to Change Child’s Last Name on Birth Certificate in Tennessee

With regard to whether changing a child’s surname on the birth certificate is even possible will depend upon whether it is in that child’s best interests. The courts consider the following five factors:

(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.

Barabas v. Rogers, 868 S.W.2d 283 (Tenn. Ct. App. 1993).

The parent seeking the name change must carry the burden of proving the change will further the child’s best interests. How much proof is needed? More than “insubstantial proof.” Nailing down what, precisely, is more than insubstantial proof is not so easy.

Divorced Parents Disagree on Changing Child’s Surname

In the case of Halloran v. Kostka, 778 SW2d 454 (1988), the parents were already divorced when a dispute arose over their daughter’s surname. They divorced in March 1983, when their daughter was a two-year-old. The father was the Alternate Residential Parent and ordered to pay child support. The mother remarried in July 1983. She asked her ex-husband to allow her new spouse to adopt the child. The father refused.

The mother identified the child by the stepfather’s surname anyway. Evidence at trial showed that the child called the stepfather “Daddy,” had been using stepfather’s last name for four-and-a-half years, and at preschool, although the child was registered in her legal name. Because the stepfather already had two children, all three used his surname.

The father petitioned the court to permanently enjoin the de facto renaming of his daughter. The mother counter-petitioned to legally change the child’s surname to the stepfather’s. The trial court granted father’s petition and permanently enjoined use of the stepfather’s surname when identifying the child. Mother’s counter-petition was dismissed. Both parties appealed.

Best Interests of the Child

The first issue addressed on appeal was whether the trial court correctly applied the child’s best interest test. The burden was on the mother, the petitioner for name change, to show using father’s surname would not be in the child’s best interests. Importantly, there was no burden on the father to prove some injury to the child if her last name was changed to the stepfather’s.

The rule is that “paramount consideration must be given to what is in the best interest of the child, and the rights of the parents must yield to that concern.”

Father testified that he lived near his child, had a good reputation, was a prominent and well-respected man in the community, had lived up to his child support obligations, and had maintained regular contact and visitation with his daughter (parenting time).

Mother offered expert witness testimony from a child psychologist along with her own testimony of the “irreparable harm and stress” it would cause the child if forced to use the father’s surname. The child “knew who her biological father is and has a good relationship with him,” but should have a name that matched her adopted sisters. The mother failed to carry the burden of proof.

Father’s Protectable Interest in Child Having His Surname

The father had a protectable interest:

It is generally recognized that the father … has a protectable interest in having his child bear the parental surname in accordance with the usual custom, even though the Mother may have been awarded custody of the child. For that reason, a change of name merely to save the mother and child from minor inconvenience or embarrassment will not be authorized against the father’s objection. Where, however, the child’s substantial interests require a change of name, as where the father’s misconduct has been such as to justify a forfeiture of his right, or where his name is positively deleterious to the child, the change may be permitted.

The trial court’s determination was affirmed. Applying the best interests of the child test (which would later appear as a five-factor test in Barabas), there was no evidence of father’s misconduct. And no evidence that father’s surname had any detrimental impact on the child. Therefore, retention of father’s surname was in the child’s best interests.

Mother’s 14th Amendment Rights Under U.S. Constitution

Renaming in the child's best interests: Tennessee father's rights to name change.

Renaming in the child’s best interests: Tennessee father’s rights to name change.

The second issue raised on appeal was whether mother’s equal parental rights as guaranteed by the Fourteenth Amendment to the U.S. Constitution were denied? The mother argued that, as the custodial parent, she should be “allowed to make the important decisions in her child’s life, which also includes the selection of a surname.” Furthermore, requiring the paternal surname for the child was old-fashioned and “perpetuated an outdated custom.”

The court rejected her argument, holding that T.C.A. § 68-3-305 (discussed later) allows parents to give the child a surname other than the father’s, but only by agreement.

In this instance, the parents were married and living together when their daughter was born. Because they mutually chose the child’s surname, the court found that the “Mother had already exercised her equal parental rights by her participation in choosing this name.” Not allowing the child to be renamed in no way deprived the mother of her statutory or constitutional parental rights. The child kept father’s surname with the costs of proceedings taxed against the mother.

In a similar case years later, a father’s protectable interest in having his child carry his surname was nibbled away at. Although the court denied the mother’s petition to change the child’s surname to stepfather’s, the court did not wholly enjoin informal use of stepfather’s surname when indentifying the child. The child’s wishes were to use his stepfather’s surname, plus there was no evidence that doing so was harmful to the child. Layman v. Replogle, 01A01-9312-CV-00516, 1994 WL 228227 (Tenn. Ct. App. May 27, 1994).

Father’s Misconduct Supported Renaming Child

What misconduct by a divorced father would be sufficiently damaging to the child that changing the child’s surname is warranted? For one, conviction and incarceration for sexually abusing a step-child. The court granted the mother’s request to have the convicted father’s two children, both born during the marriage, renamed. (The father’s petition for visitation was denied.) Commission of the type of “heinous or notorious crimes that might stigmatize the child” is reason to change the child’s surname. Hill v. Hill, E2011-00611-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2011).

How to Change a Child’s Last Name on Birth Certificate

What happens if the father acknowledges paternity, but the parents do not agree on the child’s surname? With a child born out of wedlock and given the mother’s last name, the burden of proof is on the father to prove how changing the child’s last name to match his surname is in the child’s best interest.

In the case of Sullivan v. Brooks, the court reiterated Tennessee’s public policy that “a child of unmarried parents bear the surname of its mother, absent agreement to another name.” Furthermore, “a nonmarital child’s surname is not automatically changed following a paternity or legitimation proceeding.” Proof is always required to show that changing the child’s surname would be in that child’s best interests. In this instance, the burden of proof was on the father who sought the name change. Sullivan v. Brooks, M2009-02510-COA-R3-JV (Tenn. Ct. App., May 23, 2011).

The parents in Sullivan v. Brooks were both young and unmarried. The child’s surname on the birth certificate was the mother’s maiden name. The father was there from the time of the child’s birth. When the baby was eight days old, father petitioned to establish parentage and sought to have the child’s surname changed to his. The mother objected to the name change, however. Why? Because the mother and child resided with her parents and everyone in the household shared the same last name.

The trial court granted father’s request to change the child’s last name to his. The court applied the Barabas factors, determining that taking father’s surname was in the child’s best interests. The father showed how he had been a very involved parent and was even there when the child was born. Nothing detrimental to the child was associated with father’s surname. The court also reasoned, in part, that both parents were young and, in all likelihood, giving the child the mother’s maiden name was temporary until she married and, as is customary, took the name of her husband.

The mother prevailed on appeal. Reversing the trial court, the Court of Appeals held that the father did not carry the burden of proving, by more than insubstantial proof, that changing his child’s surname (from mother’s maiden name to his surname) was in the best interests of the child. A father’s mere preference or wish that his nonmarital child reflect his parentage was insufficient cause to rename the child. “A parent’s preference is not enough; it is not evidence that a name change is in the child’s best interests.” Absent parental agreement, the nonmarital child’s last name on the birth certificate would remain the mother’s surname. See T.C.A. § 68-3-305(b)(1).

Renaming in the Nonmarital Child’s Best Interests

Shortly after the Sullivan decision, another Tennessee court allowed the hyphenated combination of both parents’ names following father’s petition to establish parentage and rename the nonmarital child after himself. In re A.M.K., E2011-00292-COA-R3-JV (Tenn. Ct. App., August 11, 2011).

In A.M.K., the child’s surname was originally the mother’s maiden surname. However, the hyphenated surname that combined two strong families was in the child’s best interests. What was different? First, this father had a very strong bond with his child and substantial parenting time. Second, both parents worried the child would be embarrassed without the father’s surname.

In the best interest of the child analysis, the court went beyond the Barabas factors and “considered the nature of the father’s relationship with the child.” The parents were not in agreement on changing the child’s name completely to the father’s surname, but this court tailored a compromise for them. This case also illustrates the importance of testimony from character witnesses, such as pastors and grandparents, and testimony of father’s parenting time activities.

The preceding case law gives parents an idea of the evidence required to carry the burden of proving a name change is in the child’s best interest. But how is the child legally named in the first place?

Name Change of a Minor in Tennessee

The child’s given surname on the birth certificate must comply with Tennessee statutory law. T.C.A. § 68-3-305. Be mindful of important statutory timelines for objecting to use of a surname and amending a child’s certificate of birth. Consult a Tennessee family lawyer who is experienced in these matters.

In general, the following steps implement the statute for purposes of the child’s birth certificate. Often this occurs at the hospital when and where the child is born.

Tennessee Birth Certificate Laws: Mother Was Married During Pregnancy

Was the mother married when her child was born? Was the mother married at any time during the 300 days preceding the child’s birth?

If the answer to either question is “yes,” then her husband or former husband is presumed to be the child’s legal father according to T.C.A § 36-2-304. The child will have the legal father’s surname. However, there are exceptions to the child’s surname being the presumptive legal father’s surname:

  1. Court Order: With a court determination that the husband or former husband (Mr. Jones) is not the child’s biological father, the child’s surname would be the mother’s maiden surname (Ms. Brown) or as set forth in the order. For example: Baby Brown.
  2. Mother Kept Her Maiden Name: First, when the mother kept her maiden name (Ms. Brown) and never used her husband’s surname (Mr. Jones). And, second, both mother and father execute a sworn statement agreeing the child’s surname shall be the mother’s maiden surname. For example: Baby Brown.
  3. Mother Changed Her Name Back: First, the mother took her husband’s name upon marriage (Mrs. Jones), but had her maiden surname reinstated by legal process thereafter (Ms. Brown). And, second, mother and father (Mr. Jones) execute a sworn statement that the child shall be given the mother’s surname. For example: Baby Brown.
  4. Combination Surname: Mother (Ms. Brown) and legal father (Mr. Jones) execute an agreement that their child’s last name shall be a combination of both their surnames. Example: Brown-Jones.

Parents Not Married During Mother’s Pregnancy

What options do unwed parents have when naming their child? Does the mother have a superior naming right over the biological father?

If the mother was not married when her child was born, or was not married at any time during the 300 days preceding the child’s birth, then there are two possibilities:

  1. Paternity Not Acknowledged: In the absence of any valid acknowledgement of paternity, the child’s last name should match the mother’s surname.
  2. Paternity Acknowledged: With an acknowledgement of paternity at any time before the child turns 19 years old, the child will get the father’s surname. The parents can agree to any of the following surnames for their child: father’s surname; mother’s surname, or combination of both parents’ surnames.

If parents marry after their child is born, called legitimation by subsequent marriage, where both parents are already on the birth certificate, then no new certificate is needed. T.C.A. § 36-2-207.

Name Change After Divorce in Tennessee: Reinstating Mother’s Maiden Name

With divorce pending, a wife may add a prayer for relief to have her maiden name restored. That’s not an extraordinary request and, in most instances, the court will grant it. Name reinstatement occurs without further ado by court order along with the divorce decree, child support order, permanent parenting plan, and related matters. The path may not be so smooth if the wife’s purpose in changing her name is to perpetrate a fraud, illegal purpose, or upon showing of a detriment to a minor child. In any case, the court should not go so far as to take judicial notice that restoring mother’s maiden name is against the child’s best interests. See McCullough v. McCullough, 88-61-II, 1988 (Tenn. Ct. App. 1988).

Hybrid Surnames Are Not Permitted in Tennessee Law

Could a wholly new name be contrived which blended both parent’s surnames in a novel new way? No! Mother Smith and Father Jones, for example, could not be transformed into Baby “Smijon” or Baby “Jonith.” T.C.A. § 68-3-305(a)(1) does not allow hybrid surnames that contain less than each parent’s full surname, however creative and interesting a hybrid might be. Parents cannot agree to such hybrids. The Tennessee Attorney General’s Opinion No. 14-75 (August 14, 2015) made it clear that hybrid surnames for children are not permissible. A combination of the parents’ surnames must include whole names as listed.

 Two Last Thoughts 

Child custody disputes between parents may be submitted to mediation. Whether parents are married or unmarried, an agreeable last name for the child is something to try mediating.

For updates on Tennessee Court of Appeals cases dealing with naming rights of children, see the Custody and/or Father’s Rights categories in our Tennessee Family Law Blog.

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