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Paternity Actions: Which Last Name Does the Child Receive?

When a child is born out of wedlock, legal issues that may arise fall under paternity actions. Paternity actions are quite similar to divorce actions, and oftentimes, statutes from paternity law mirror statues from divorce law. However, there are some differences and complexities with paternity that are not faced in divorce. One example is the surname of the child(ren).

In divorce, if a child is born of the marriage, the child will generally receive the surname of the parties (father’s surname most commonly). However, in paternity matters, this is not always the case. The child’s will be recorded under the name of the child’s mother or as directed in a paternity affidavit executed by the parents1.

A recent Court of Appeals case explored the issue of changing the surname of a child in a paternity action. In C.B. v. B.W. (initials are used in paternity cases to protect the identity of the parties and child), the minor child C.D.B. was born out of wedlock to the parties in 20072. Mother gave the child her surname, and for five (5) years, the child was known by Mother’s last name.
In 2011, Father petitioned to establish paternity and requested that the child’s surname be changed to his. A hearing was held, evidence was presented, and the trial court held that the child’s surname should be changed to Father’s. Mother appealed.

The Court of Appeals noted that the trial court’s findings had included evidence regarding why it was in the child’s best interest for his surname to be changed to Father’s, including the child did not own any property under Mother’s surname, there was no evidence the child was baptized under Mother’s surname, and Father has sought and maintained a relationship with the child.

Prior caselaw has examined the issue of surname-changes, and the Court of Appeals has held that “a biological father seeking to obtain a name change of his nonmarital child bears the burden of persuading the trial court that the change is in the child’s best interests”. Here, the trial court examined the proper factors (property, how the child is known in the community, degree of confusion with a name change) and affirmed (agreed with) the trial court’s conclusion that that child’s surname should be changed.

While paternity and divorce cases are often very similar and follow a common path in some aspects, other aspects are specific to paternity proceedings only. One such example is a name change. Knowing the options for a child’s surname and whether that may be changed and how can be important factors in a paternity matter.

We hope that this blog post has been helpful in exploring the basics of paternity name changes. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.

  1. See Ind. Code §16-37-2-13
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