In a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.
About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.
The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.
She filed for divorce and listed herself and the husband as parents of an unborn son. He denied paternity and asked for genetic testing. However, he didn’t ask in the counter petition for divorce that his child’s last name be changed to his own. The wife reported that in 2013, her husband asked her not to contact him anymore.
The son was born next month. The father wasn’t at the delivery.
When the mother was given paperwork to get her son’s birth certificate, she listed the husband as the father but noted the last name would be her own. Later, she would testify she gave her last name because the father walked out on the marriage and denied paternity at the time. A paternity test showed that the husband was, in fact, the biological father. The divorce progressed without the father asking for the child’s last name to be changed. The divorce was finalized when the baby was around nine months old.
Over a year later, the father tried to modify conservatorship to permit more access to his son. The mother counter-petitioned, asking for more child support. He changed his petition when the child was 2 1/2 years old to ask his last name be changed to his own.
The mother stated that the father had never mentioned wanting the son to carry his last name until he amended his petition, and after the son had accumulated over two years of experience using her last name. She argued it would be confusing for the child to change his name after he’d started identifying with her last name.
While the parents were able to resolve other issues, they couldn’t agree about his last name. The court held a hearing to determine which last name would be in the child’s best interest. The parents’ testimony contradicted each other. The lower court ruled that the child’s last name should be changed to the father’s last name and that this was in the child’s best interest.
The mother appealed. She argued that there wasn’t enough evidence changing the last name was in the child’s best interest. The appellate court explained that section 45.004 of the Texas Family Code stated that a court could order the name of a child changed if that change was in the child’s best interests. The parents’ interests weren’t relevant. Instead, the court should look at six non-exclusive factors: (1) which name would best avoid anxiety or embarrassment when considering parental misconduct and community respect associated with the name, (2) the name that would best position the child’s identity within the family unit, (3) assurances by the parent whose last name a child will have that the parent won’t change his or her name at a later time, (4) the amount of time a child uses one last name and how much the child identifies with it, (5) the child’s preferences along with her maturity and age, and (6) whether either parent is motivated by something other than the child’s best interest.
The appellate court noted the inconsistent testimony and that they had both testified on the child’s best interests from their perspectives. The lower court had given weight to the testimony according to its perception of credibility, and generally, an appellate court is supposed to give deference to that weight.
The father argued that it wouldn’t disrupt the child’s life to change his name when he was so young. He also testified that sharing a last name would facilitate a better bond with him and the rest of his family. The mother argued it would be confusing for the child to change to the father’s last name, since she was the one who went places with him and faced the prospect of having mismatched names. The child already knew his name, and it was a name chosen when the father had refused contact and denied paternity.
The appellate court reasoned that the lower court had sole authority to make credibility determinations and resolve conflicting evidence. It found there was enough evidence to support the name change. The mother argued that the lower court improperly shifted the burden of proof to her to disprove it was proper to change the child’s last name. The appellate court overruled this issue. The mother also argued that the lower court had a bias toward traditional naming choices, and this issue too was overruled.
The lower court’s ruling was affirmed.
If you are concerned about paternity issues, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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