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  1. #1
    Join Date
    Oct 2018
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    Virginia
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    1

    Default Can a Father Who Has Primary Physical Custody Change His Child's Last Name

    My question involves name change laws in the State of: Virginia.

    I never married my child's mother, and I was unable to see my daughter until she was 9 months old. Went through the court system and proved that I was the biological father of my daughter. Went the long way through the system, and eventually was granted Primary Physical custody. Had to jump through hoops to get my name on the Birth Certificate. Her mother gave her maiden name as her last name. So she doesn't really have her maternal or paternal last name. I'm sorry if this may come across as poorly worded, I'm just curious as to what, if anything, I can do to legally give my daughter my last name.

  2. #2
    Join Date
    Mar 2013
    Posts
    16,797

    Default Re: Can a Father Who Has Primary Physical Custody Change His Child's Last Name

    Here's the statute:

    https://law.lis.virginia.gov/vacode/...ction8.01-217/

    Here's a link to Virginia courts self-help. Unfortunately, the forms link isn't cooperating with me today. You'll have to look for the name change petition on your own:

    https://selfhelp.vacourts.gov/node/28/find-form

    You are probably going to have to get the mother's written consent for the court. That's usually the stumbling block for changing a minor's name.

  3. #3
    Join Date
    Sep 2010
    Posts
    18,929

    Default Re: Can a Father Who Has Primary Physical Custody Change His Child's Last Name

    Even if both parents agree, you have to convince the court it's in the child's best interest. What one or both parents "want" isn't the determining factor. As AJ points out, unless both parents join in the petition, it likely will fail. Custody isn't a determining factor.

  4. #4
    Join Date
    Oct 2014
    Posts
    7,169

    Default Re: Can a Father Who Has Primary Physical Custody Change His Child's Last Name

    Quote Quoting flyingron
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    Even if both parents agree, you have to convince the court it's in the child's best interest.
    I disagree that you have to convince the court of that when both parents agree on the name change. In a fairly recent decision, the Virginia Supreme Court stated the rule thus: "If one parent objects to the proposed name change of a child, the trial court is required to consider whether the name change is in the best interest of the child." McMahon v. Wirick, 288 Va. 197, 201, 762 S.E.2d 781, 783–84 (2014)(Italics added). If the court were required to apply that same standard in all cases of a minor name change, i.e. including those in which both parents agree, the opening clause that I put in italics would not be needed. It is only when there is an objection to the change that the court needs to wade in and decide between the two opposing sides by applying the best interest of the child standard.

  5. #5
    Join Date
    Mar 2013
    Posts
    16,797

    Default Re: Can a Father Who Has Primary Physical Custody Change His Child's Last Name

    Quote Quoting JWV2018
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    I'm just curious as to what, if anything, I can do to legally give my daughter my last name.
    Probably nothing, based on the case decision cited by Taxing Matters.

    Here's a link to the full decision.

    https://scholar.google.com/scholar_c...09906655331947

  6. #6
    Join Date
    Sep 2010
    Posts
    18,929

    Default Re: Can a Father Who Has Primary Physical Custody Change His Child's Last Name

    Yes, I was incorrect, but you don't have to go to the court case for that decision, it's straight out of the statute. You only need to show good cause (which is required for any name change, even adults petitioning for themselves). The best interest test is required by statute when a living parent objects. (Code of Virginia 8.01-217).

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