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Texas Court Allows Mother to Change Children’s Last Name

Most Texas divorces address property division and custody and visitation issues, where there are children.  In some cases, however, there are more unusual issues that must be addressed.  In one recent case, a father challenged a court’s order allowing the mother to change the children’s last name from their father’s name to their mother’s maiden name.

The parents had two children together.  The father is currently serving a life sentence without parole for an offense that occurred when his children were one and three years old.  The mother petitioned for divorce.  She requested to be appointed sole managing conservator, to change the children’s name, and to keep the father from having contact with the children.

The mother testified that the father’s family did not help after he was incarcerated.  She thought contact with the father would threaten the kids’ emotional welfare.  She testified that the father was a former gang member and she was afraid of him. She argued that keeping their father’s name “would be a source of anxiety, embarrassment, inconvenience or disruption” to the kids.

The judge granted the mother’s divorce petition, named her sole managing conservator, and ordered the children’s last name be changed.  The judge also named the father possessory conservator, ordered the mother to have a post office box for communication from the father, and granted the father’s sister visitation.

The mother moved for reconsideration of the visitation rights.  She argued the trial court did not have authority to grant visitation rights to a non-party.  The court ultimately granted the motion and the final decree did not include visitation with the father’s sister.

The father appealed.  He argued that removing the visitation rights in the final decree was an abuse of discretion.  The appeals court noted that the father’s sister was not a named party and had not intervened in the case.  The trial court therefore did not have the authority to grant her visitation.  The appeals court found the trial court did not abuse its discretion in granting the mother’s motion for reconsideration and omitting the visitation rights from the final decree.

The father also argued that the trial court abused its discretion in granting the mother’s request to change the children’s name.  He argued there was not sufficient evidence supporting the name change being in the children’s best interest.  Courts generally consider six factors in determining if the change would be in the child’s best interest, though those factors are not exclusive. Here the appeals court considered whether it would reduce anxiety, embarrassment, inconvenience, confusion, or disruption, whether it would help the child identify with family, whether the parent assures he or she will not change his or her name, the length of time the child used the name and how much he or she identifies with it, the child’s preference, and the parent’s motivations to change it.

The mother had indicated the father’s incarceration gave his name negative association.  She thought the name would make her children a target of bullying.  She said she would not change their name again. She testified the kids were fine with changing their name because they did not really know their father or identify with his name.  The appeals court found that there was substantial and probative evidence supporting at least five of the factors.  Although the husband argued that the wife wanted to change their names out of vindictiveness, he did not provide any evidence for that.  The appeals court found there was sufficient evidence to support the trial court’s implied finding the change was in the best interest of the children.

The father also argued the court erred in limiting his communication with his children to mail.  The appeals court noted that the trial court must have found appointing the father possessory conservator was not a danger to the children.  When it limited his access and contact, however, it must also have found the limited correspondence was in the children’s best interest.  The children were very young when their father committed the offense.  They never visited him in prison and said they do not know him.  The mother expressed concern that letting them speak to their father on the phone or visit him would threaten their emotional welfare.  She had not told them he was in prison, about his crime, or the sentence.  She said she was afraid of him and wanted to protect her children from him due to his gang affiliation and murder conviction. The appeals court found no abuse of discretion.

If you are planning a divorce, a skilled Texas custody attorney can help you protect your rights and your children.  Call McClure Law Group at 214.692.8200 to talk about your case.

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