The desire to change a child’s surname arises quite frequently between separated parents. Usually, there is some catalyst for it, something like:-
- A child lives with one parent and has either a very limited relationship or no relationship whatsoever with the other parent. The first parent may want their child to have their surname;
- A child may have his or her mother’s or father’s surname and the other parent wants their child to have a hyphenated surname because they feel this will ensure the child has a connection with both parents;
- Sometimes a parent changes their surname after remarriage, and they may want to change their child’s surname as well.
It is quite common for one parent to informally use a different surname, but from a legal perspective, a Court Order is required if one parent wants to:-
- Use a different surname to what is on their child’s Birth Certificate; or
- Change a child’s Birth Certificate to state a new surname; or
- Stop the other parent from using a different surname for their child.
The issue of changing a child’s surname is often accompanied by strong emotions, so if the parents have been able to reach an agreement about changing the child’s surname, it is a good idea to formalize this legally to avoid future problems. This is by filing what is known as Consent Orders with the Court.
If parents cannot agree, the parent wanting to make the change (or to stop a change), may need to file an application with the Court to request an Order to change the child’s surname (or an Order to stop the other parent from using another surname).
Parents can apply to either the Family Court or the Federal Circuit Court for these types of Orders, including an Order permitting the change of a child’s name on the child’s Birth Certificate. It is common for these types of Orders to be sought together with other parenting orders. For example, orders about the child’s living arrangements.
If the only issue in dispute is that of the name of a child, then parents have the option of making an application to the Queensland Magistrates Court under the Births Deaths and Marriages Registration Act 2003 (Qld). However, there are tactical considerations that need to be made about which is the most advantageous forum and it is prudent to first obtain advice about that.
The Family Court, or Federal Circuit Court exercising jurisdiction under the Family Law Act, will not make a name change order simply to accommodate the wishes of a parent. When dealing with any parenting matter, the Court has the power to make any order that it considers appropriate for the welfare (or in the best interests) of the child. This is the overriding consideration when making any parenting order.
The Court will take into account many factors when deciding whether to grant an application to change a child’s surname (or to stop one parent from using a different surname for their child). Some of those factors taken into account include:-
- How old (and therefore mature) the child is and any wishes he or she may have expressed about the name change;
- How the name change might affect the child in the short and long term;
- What are the advantages both short term and long term to the child if the child’s surname is changed as opposed to remaining as it is?
- The relationship between the child and each parent and the child’s siblings and their likely future relationships;
- The personal impact on the child of a name change. Will the child experience any embarrassment if they have a different name, or if they keep the same name? or will the child be confused about their identity if his or her name is changed or is not changed?
- What effect will any change in surname have on the relationship between the child and the other parent, or the child and his or her sibling?