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  1. #1
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    Default Who Chooses the Last Name of a Baby Born After Separation

    I am separated from my wife but still married. She is saying that won’t give my baby my last name when born. Is that possible? Can i make her give my last name to my child if we are still married? Thank you

  2. #2
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    Default Re: If I Am Married Would My Baby Take My Last Name when Born

    In what state are you, Tony?

  3. #3
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    Default Re: If I Am Married Would My Baby Take My Last Name when Born

    If you have been living separately, are you sure this is your child? If questionable, see an attorney sooner rather than later if a divorce is in the works.

  4. #4
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Quote Quoting Tony 2013
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    I am separated from my wife but still married. She is saying that won’t give my baby my last name when born. Is that possible? Can i make her give my last name to my child if we are still married? Thank you
    The mother chooses the last name of the child. Once the father establishes paternity via the courts the father can challenge the child's last name and ask that it be changed. The judge may or may not agree with the father.

  5. #5
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Quote Quoting llworking
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    The mother chooses the last name of the child. Once the father establishes paternity via the courts the father can challenge the child's last name and ask that it be changed. The judge may or may not agree with the father.
    This is a marriage. Paternity is presumed unless that presumption is overcome in court. When a married couple cannot agree about a child's surname, some states recommend or even require that the father's surname be used pending the resolution of the dispute between the parents or in court.

    We still don't know what state is involved but in many states a divorce court would resolve this type of dispute between separated spouses by ordering a hyphenated surname.

  6. #6
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Quote Quoting Mr. Knowitall
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    This is a marriage. Paternity is presumed unless that presumption is overcome in court. When a married couple cannot agree about a child's surname, some states recommend or even require that the father's surname be used pending the resolution of the dispute between the parents or in court.
    Yes, the presumption exists, but unless mom is willing to allow her separated husband to be present for the birth, she is going to be in control over what goes on the birth certificate, and its going to have to be resolved in court. Since they are separated the presumed father is going to want a paternity test.

    We still don't know what state is involved but in many states a divorce court would resolve this type of dispute between separated spouses by ordering a hyphenated surname.
    The court encourage parents to agree to hyphenated surnames, the court do not impose them.

  7. #7
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Quote Quoting llworking
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    Yes, the presumption exists, but unless mom is willing to allow her separated husband to be present for the birth, she is going to be in control over what goes on the birth certificate, and its going to have to be resolved in court.
    In some states the father's surname must be used in that situation, and the hospital will know it and comply with rule.

    Quote Quoting llworking
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    The court encourage parents to agree to hyphenated surnames, the court do not impose them.
    If the parents will not agree on a name, the court must decide the issue for them. The court can indeed impose the name it picks. How else does that impasse get resolved?

  8. #8
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Quote Quoting Taxing Matters
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    In some states the father's surname must be used in that situation, and the hospital will know it and comply with rule.



    If the parents will not agree on a name, the court must decide the issue for them. The court can indeed impose the name it picks. How else does that impasse get resolved?
    The judge chooses either the father's or the mother's surname. I have never seen or heard of a judge in the real world, imposing a hyphenated name unless the parents agreed to it. I have heard of and seen judges encourage parents to compromise on a hyphenated name, but never to actually impose one.

  9. #9
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Until we know what state this is in, the entire point is moot.

  10. #10
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    Default Re: Who Chooses the Last Name of a Baby Born After Separation

    Quote Quoting llworking
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    The judge chooses either the father's or the mother's surname.
    We do not know the state involved here to be able to make that kind of definitive statement. Each state's law is different. So unless you can you cite for me the law in every state that restricts the judge to just those choices you might concede at least some states the law would allow the court to do it. Indeed, as I show below, there are indeed cases which show that in at least some states the courts are not restricted to just those choices.

    Quote Quoting llworking
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    I have never seen or heard of a judge in the real world, imposing a hyphenated name unless the parents agreed to it. I have heard of and seen judges encourage parents to compromise on a hyphenated name, but never to actually impose one.
    But I’m going to guess that you have not reviewed all the decisions in child name disputes in this country, or even a majority of them, to really know if it has ever been been done.

    I'll give you one case in which the court did in fact give the kid a hyphenated name in an initial naming dispute rather than choosing just the surname of one parent or the other:

    Although the district court did not have the benefit of the list of factors we adopt in this opinion, the court did evaluate the best interests of the child, and its determination was based on several of the factors we now adopt. For instance, the district court considered “the length of time the child” used his current surname, which also addresses whether the name change would “cause insecurity or identity confusion.” 57 Am. Jur. 2d Name § 14 (2012). The court further noted that Adrianzen filed the action to change the child's surname within two months of birth. The court also considered the “potential impact of the requested name change on the child's relationship with each parent,” id., noting that the hyphenated name would allow the child to identify with both parents. Further, Adrianzen testified that in many Hispanic families children have hyphenated last names. Therefore, we conclude that the district court did not abuse its discretion in determining that it was in the best interest of the child to change the child's surname, and we affirm the district court's order.

    Petit v. Adrianzen, 392 P.3d 630, 633 (Nev. 2017). In that case, Petit, the mother, had given the child her surname at birth. Then the father, Adrianzen filed suit to change the child's name to his surname. The district court then decided to impose a hypenated name even though neither parent had asked for that. The Nevada Supreme Court affirmed that decision in the opinion cited above.

    Note too the comment from the Ohio Supreme Court on the issue: "A combined surname is a solution that recognizes each parent's legitimate claims and threatens neither parent's rights. The name merely represents the truth that both parents created the child and that both parents have responsibility for that child. In re Willhite, 1999-Ohio-201, 85 Ohio St. 3d 28, 33, 706 N.E.2d 778, 782. The Supreme of Alaska, after reviewing the Ohio Court's discussion of hypenated names, stated "Although we are not ruling that these considerations necessarily apply to the present case, we think that they are worthy of serious consideration." In re A.C.S., 171 P.3d 1148, 1154 (Alaska 2007).

    There are other cases in which a court has approved a hypenated name even though both parents did not agree to it, most commonly where one parent has named or proposes to name the child with the hypenated name and the other insists on just his/her surname. "In the instant proceeding, the court holds that, given the theories of equal protection and the right of equal parenting, defendant herein has done nothing to prejudice the right of the father to bear his surname. As noted above, neither parent has a superior right to determine the surname of a child (Cohan v. Cunningham, supra). It is only right to note, however, that the court's decision might have been different had defendant given the child her own surname, and not the hyphenated name that she did." Rio v. Rio, 132 Misc. 2d 316, 324, 504 N.Y.S.2d 959, 965 (Sup. Ct. 1986).

    In short, it is not the case, as you suggest, that in every state the judge is restricted to using either the father's or mother's surname and that the court cannot order a hypenated name unless both parties agree. That may be the case in some states, but clearly is not the case in all of them.

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