The legal custodian of the minor must petition in the county where the minor resides.
Physical custody alone does not give one the status of legal custodian.
Legal custody of minor children after divorce is determined by ascertaining from the divorce judgment which person has the decision-making responsibilities.
When there are shared parental rights and responsibilities, determined by a court order, one parent alone could not be deemed legal custodian. Hence, both parents would have to agree to a change of name for the minor.
Similarly, if there has been no court determination as to parental rights and responsibilities but both parents are alive, the parents would have to agree to a name change in order for the Probate Court to act. As an alternative, one parent could seek a
parental rights determination from the District Court, requesting exclusive authority to change the name of the child. Once a parent has been allocated the authority, he or she may petition the Probate Court.