(Re)Naming the Children

It is no surprise that couples, especially former couples, can fight about anything. It is therefore also no surprise that an emotional issue will create lots of friction. Such as what to name a child.

Clearly, this issue arises often in nonmarital custody cases, where the parents were never married. Sometimes Dad isn't present when the child is named. Sometimes Mom regrets the decision after the fact. It happens. But what some people don't expect is that it also happens in divorce cases. People that were married when the child was born sometimes argue about the child's name after the fact. And Iowa law allows it.

In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993) paved the way. Without Husband's knowledge or consent, Wife put her maiden name on the child's birth certificate. During the divorce, Husband requested his surname for the child, but the trial court disagreed. Appeal followed. 

The Supreme Court  first ruled that the District Court had authority to make this determination. It fount this ability was implied in the other Dissolution of Marriage statutes, by giving the Court broad authority to determine the child's legal status. The Court thereafter engaged in a "best interests of the child" analysis, but did specifically state that the preference for the father's surname was outdated. 

Therefore, the Court can change the child's name as part of a divorce proceeding. The factors to be considered are not clearly outlined in that case. However, in a similar nonmarital  custody case, the factors are more neatly outlined.

In Montgomery v. Wells, 708 N.W.2d 704 (Iowa App. 2005), the parties had one child without being married, who was given Mother's last name. When a court proceeding was initiated to determine custody and visitation, Father also requested the child's last name be changed to his last name.

First, as in the Gulsvig case, the Court had to make sure it had the authority to mess with the child's last name. The Court essentially found that the nonmarital custody statute was intended to mirror the divorce statutes in conferring authority, and therefore the Court could determine the child's name. 

Then, the Court turned to the best interests of the child. The Court considered these twelve factors:

1. Convenience of the child to have the same or different surname from the custodial parent;
2. Identification of the child as part of a family unit;
3. Assurances from the mother that, should she marry, she will not change her surname;
4. Avoiding embarrassment, inconvenience, or confusion for the custodial parent or child;
5. The length of time the surname has been used;
6. Parental misconduct, like support or nonsupport, maintaining or failing to maintain contact with the child;
7. The amount of community respect associated with both names;
8. The positive or negative effect the name change may have on the bond between the child and either parent or parent's family;
9. Any delay in requesting or objecting to the name change;
10. The preference of the child, if sufficiently mature to have a meaningful preference;
11. Motivation of the parent seeking the change as an attempt to alienate the other parent; and 
12. Any other factor relevant to the best interests of the child.

So, in short, you can change or establish a different name for a minor child, either during a divorce or a nonmarital custody case. But the Court will look to these twelve factors to decide whether it is in the child's best interests.