In most of the English-speaking world throughout history, a child born to married parents inherits the surname of his father. A child that was historically born to unmarried parents was considered “illegitimate” and usually took the surname of the mother unless the father legally acknowledged that it was his child. In modern times, the concept of illegitimacy and the stigma attached to it has been swept away as more couples are cohabiting and having children without ever getting married. However, this begs the question of which unmarried parent has the right to pick the surname of the child? What if the couple breaks up prior to the child being born and they cannot agree on the last name? Who wins the tiebreaker under the law?
MCL 333.2824 designates which parent (or parents) has the statutory right to pass on their last name to their child:
- (1) The name of the husband at the time of conception or, if none, the husband at birth shall be registered as the father of the child. The surname of the child shall be registered as designated by the child’s parents.
- (2) If the child’s mother was not married at the time of conception or birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and without the completion, and filing with the state registrar, of an acknowledgment of parentage by the mother and the individual to be named as the father. The acknowledgment of parentage shall be completed in the manner provided in the acknowledgment of parentage act. For a certificate of birth completed under this subsection and upon the written request of both parents, the surname of the child shall be designated by the child’s parents.
- (3) If the name of the child’s father cannot be shown under subsection (1) or (2), the child shall be given the surname designated by the mother.
- (4) If the paternity of a child is determined by a court of competent jurisdiction, the name of the father shall be entered on the certificate of birth as found and ordered by the court. The surname of the child shall be entered on the certificate of birth as designated by the child’s mother.
It is not enough to be the biological of the child. A father must take steps to establish his legal paternity before he has any standing to pass his last name on. If a man is married to the mother at the time from conception to birth, or legally adopts the child, then he is assumed to be the legal father under the law. However, legal paternity is also established under the following:
- A man whose paternity is established by the completion and filing of an acknowledgment of parentage in accordance with the provisions of the Acknowledgment of Parentage Act, MCL 722.1001 et seq., or a previously applicable procedure. For an acknowledgment under the Acknowledgment of Parentage Act, the man and mother must each sign the acknowledgment of parentage before a notary public appointed in this state. The acknowledgment shall be filed at either the time of birth or another time during the child’s lifetime with the state registrar which will cause a new birth certificate to be issued. Upon the written request of both parents, the surname of the child shall be changed on the certificate to a name designated by them.
- A man who by judgment of paternity is judicially determined to be the father of the minor under the Paternity Act, MCL 722.711 et seq. or a similarly applicable procedure. This arises when the man files suit in circuit court asking to be legally declared the father and to receive parental rights.
- A man who by order of filiation is judicially determined to be the father of the minor under the Genetic Parentage Act, MCL 722.1461 et seq. or a similarly applicable procedure. This usually arises when the mother, the prosecuting attorney or the Department of Health and Human Services files suit asking for legal paternity so that a child support order may enter.
In all instances for unmarried fathers, the mother must consent to the entry of the father’s surname. The acknowledgment of parentage must also be signed by the mother who must give written consent to the name on the birth certificate. If legal paternity is established by a judgment or court order, then the surname shall be entered as designated by the child’s mother. If the mother does not approve of the surname, then the father does not have legal standing to designate otherwise.
A name change petition may be filed in the circuit court by the parents requesting that a minor’s name be changed anytime before the child turns 18. However, the following rules apply under MCL 711.1(5):
- If the petitioner is a minor, the petition shall be signed by the mother and father jointly; by the surviving parent if 1 is deceased; if both parents are deceased, by the guardian of the minor; or by 1 of the minor’s parents if there is only 1 legal parent available to give consent.
- The written consent to the change of name of a minor 14 years of age or older, signed by the minor in the presence of the court, shall be filed with the court before an order changing the name of the minor is entered.
- If the court considers the child to be of sufficient age to express a preference, the court shall consult a minor under 14 years of age as to a change in his or her name, and the court shall consider the minor’s wishes.
Once again, a name change petition for a minor requires the consent of the mother unless she is deceased or lost her parental rights. The judge cannot grant the name change if these conditions are not met. There are no statutory exceptions to this rule.
If you or a loved one have questions about naming a child or any other family law issue, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.