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  1. #1
    Join Date
    Jan 2009
    Posts
    1

    Question Naming Child's Last Name

    My question involves paternity law for the State of: Mississippi

    I am just 7 weeks pregnant. I already have a 5-year-old with another man. I want both of my children to have the same last name which is my last name. The father of the child I am pregnant with currently wants this child to have his last name stating he is the last one in his family to carry on the name. We are no longer together and I do not want my children to be raised with different last names. What rights do I have to giving my child my last name? Do I have to give this child his last name? I've had 1 lawyer say I do and another lawyer say it's my decision, and 1 who says it's up to a judge to determine. Can you please help me out?
    Thanks

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Naming Child's Last Name

    Assuming you don't jointly establish paternity at the time of birth, and agree to a surname at that time, Missouri statutory law suggests the following: If paternity is established after a paternity lawsuit, "the surname of the child shall be that of the father, unless the judgment specifies otherwise" - meaning you would argue to the court that it should not change the child's surname from yours. If paternity is established by affidavit, "Upon request of the parents ...the surname of the child shall be changed on the certificate to that of the father" - meaning that you and the father would have to ask for the child's name to be changed.
    Quote Quoting Missouri Code § 93-9-9. Enforcement; attorney's fees and costs; surname of child.
    (1) Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; provided that such an adjudication after the death of the defendant must be made only upon clear and convincing evidence. If paternity has been lawfully determined, or has been acknowledged in writing according to the laws of this state, the liabilities of the noncustodial parent may be enforced in the same or other proceedings by the custodial parent, the child, or any public authority which has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, necessary support and maintenance, and medical or funeral expenses for the custodial parent or the child. The trier of fact shall receive without the need for third-party foundation testimony certified, attested or sworn documentation as evidence of (a) childbirth records; (b) cost of filing fees; (c) court costs; (d) services of process fees; (e) mailing cost; (f) genetic tests and testing fees; (g) the department's attorney's fees; (h) in cases where the state or any of its entities or divisions have provided medical services to the child or the child's mother, all costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of the mother's pregnancy or delivery; and (i) funeral expenses. All costs and fees shall be ordered paid to the Department of Human Services in all cases successfully prosecuted with a minimum of Two Hundred Fifty Dollars ($250.00) in attorney's fees or an amount determined by the court without submitting an affidavit. Proceedings may be instituted at any time until such child attains the age of twenty-one (21) years unless the child has been emancipated as provided in Section 93-5-23 and Section 93-11-65. In the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.

    (2) If the alleged father in an action to determine paternity to which the Department of Human Services is a party fails to appear for a scheduled hearing after having been served with process or subsequent notice consistent with the Rules of Civil Procedure, his paternity of the child(ren) shall be established by the court if an affidavit sworn to by the mother averring the alleged father's paternity of the child has accompanied the complaint to determine paternity. Said affidavit shall constitute sufficient grounds for the court's finding of the alleged father's paternity without the necessity of the presence or testimony of the mother at the said hearing. The court shall, upon motion by the Department of Human Services, enter a judgment of paternity. Any person who shall willfully and knowingly file a false affidavit shall be subject to a fine of not more than One Thousand Dollars ($1,000.00).

    (3) Upon application of both parents to the State Board of Health and receipt by the State Board of Health of a sworn acknowledgement of paternity executed by both parents subsequent to the birth of a child born out of wedlock, the birth certificate of the child shall be amended to show such paternity if paternity is not shown on the birth certificate. Upon request of the parents for the legitimization of a child under this section, the surname of the child shall be changed on the certificate to that of the father.

    (4)
    (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:
    (i) Sixty (60) days; or

    (ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.
    (b) After the expiration of the sixty-day period specified in subsection (4)(a)(i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.

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