Often one parent wants to legally change the surname of their child without the permission of the other parent.
There are certain circumstances in which this would be allowed but generally, this is not the case.
Where parents can't agree, or can't be located to be consulted, the only avenue forward is to ask the court to make a ruling and issue an order.
Even when a court has made orders granting one parent sole parental responsibility of a child, this is still not sufficient for that parent to apply to the Registry to change the name of the child unless the Orders specifically allow for a name change in addition to the Order for parental responsibility.
The court will only consider an Initiating Application for orders on this matter after the parents can prove that they have tried to settle the matter out of court by attending mediation. Where family violence is a consideration, an exemption may be sought.
If the matter gets to court, both parent will have the opportunity to put forward their position on the name change for the child and the court will then make a decision.
Best interests of the child
The Magistrate will consider such issues as:
the welfare of the child;
the immediate and long-term effects of a change of name, i.e.,
the age of the child;
the nature of the existing relationship between the child and their parents, relatives and other involved persons;
whether retaining the name preserves a bond between the child and another family member;
whether or not a change of surname would result in any confusion of identity for the child;
the extent the child identifies with their current name in relation to their siblings, family members, or it's existing use in the community;
the views of the child (particularly if the child is aged 12 years or older;
the extent to which each of the child's parents has previously contributed to making decisions regarding the child, and their previous involvement in the child's life.
The above is an example of the types of matters the Court will consider in their decision making, but it is not an exhaustive list.
If the Court is satisfied that the name change is in the child's best interest the Court will make a Court Order to that effect.
The Court Order can then be presented to the Registry of Birth, Deaths and Marriages in the state in which the child was born to register the proposed name change.
If you need advice on changing a child's name you should consider seeking legal advice from a qualified lawyer.
This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full Divorce Resource.com.au Disclaimer here
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