We Want My Step-Son to Have His Father's Last Name

My question involves name change laws in the State of: Texas

My husband has had custody of his two sons for 2 and a half years. I started dating him before the second one was born and have raised them both over the past 3 and a half years as my own. Thier bio-mom has not seen them since before the custody hearing (she didn't even show up to court) and has not talked to them either. The youngest has her last name since she didn't know who the father was (hence her and my husband splitting up) Paternity was established shortly after he was born and now we would like to change his last name to ours before he starts school. We have heard that we would have to attempt to contact the mother and of course we don't even know where she is...

Any tips of what we can do or should we just hire a lawyer? We don't really have too much money to do this... I was hoping it was something we could do ourselves.

Thanks!

Yes, generally when seeking to change a child's name, the other parent must be notified, to give them a fair chance at addressing the court with any objections to the change. When the whereabouts of the other parent are unknown, the court wants to see that every possible effort was made to locate and notify them - including things like service by publication. The trick is that unless this process is followed VERY carefully, there is risk that the other parent could come back at some later point and object and have a shot at the court changing it BACK. That's why in cases like this, the use of an attorney is HIGHLY recommended, because one tiny thing overlooked isn't worth the hassle, expense, and potential emotional turmoil to the child down the road. If mom is totally out of the picture, the attorney fees would be considerably less than if mom were around to contest the issue. Rather than a drawn out court battle, you're looking at more of a paperwork and documentation challenge, and a few hours of attorney time to get it done RIGHT needs to be seriously considered.

Alternatively, if mom has been totally absent, and didn't even show up at the initial custody hearing, have you thought about adopting the children? Be aware that a name change alone would STILL leave you as a legal stranger to the child, even with you having the same last name, and being married to the child's father. A legal stranger to BOTH children, actually.

Yes, we have discussed me adopting them and spoke to a lawyer about that and she estimated it costing around $5,000. Something we didn't have at the time. I know it would be worth it to give us and the younger one a true sense of family with all of us having the same last name. He knows his is different because we have not kept anything from them. We simply told him that she couldn't take care of them, so I am now thier mom. I was thinking changing his name would be a less expensive way to take her last name out of the equation which could make the little one feel like he is "different" than the rest of our family. My husband and I now have a child of our own. We are scared of the emotional effect it would have on the boys if she did decide to come back in thier life simply because I wanted to adopt them or even change his last name.

Side question.... if my husband had a will stating that if something were to happen to him, he would want the boys to be with me; would that cover the possibility of the state looking for her to simply put them with "family"?

He can always state his wishes in a will, but that would not be the ultimate authority.

You seriously should try the adoption. If mom wants to come back into the child's life, she will most likely be allowed to.

If you think the current situation is in the child's best interest, I don't know why you would put off trying for an adoption. You can always take out a loan. You currently have zero rights to the child you helped raise. To me, taking out a loan and getting this legalized would be too important to put off if you truly feel the way you do.

And if Mom decides this is her wake-up call to be more involved with the kids, then that is one of the risks. But wouldn't you rather know for sure either way, rather than let it loom in the back of your mind?