Father Can File a Paternity Action
Video Transcribed: Does an Oklahoma father have the right for his kids to have his surname? I’m an attorney in Tulsa, Oklahoma James Wirth and we’re talking about the father’s rights as it relates to his children using his last name. Does a father have that right?
Well, first off, this question almost always comes up only in the context of a father who is not married to the mother at the time of birth or around the time of birth. Under those circumstances, there is common law that notes what those rights and obligations are. Most of the time it’s not an issue, but if the father was not married to the mother that’s where the question comes up and that’s what we’re dealing with today.
Does that father have the right to have that child have his surname? The answer is no, the father does not have that right, but the father does have the right to request that. An Oklahoma law provides, and I can tell you the statute, it is Title 10, Section 90.4. What it says is that once a court establishes paternity, any party can file a motion for a name change for the child to get the surname of the father. The father can make that filing once paternity is established in court.
The father could file a paternity action, maybe DNA testing is necessary, maybe it’s not. Maybe the parties can agree that he’s the father. Either way, once paternity is established, any party, which includes the dad, can file a motion for that child to get his surname. Then once that motion is filed, if it is contested then it goes to a hearing. The notice goes to the interested parties and then various factors, evidence and testimony are heard by the judge, and the judge makes the ruling.
The factor that determines it is in the best interest of the child. The court has to determine whether it’s in the best interest of the child for the child to take dad’s surname. Now, that statute doesn’t get a lot of details for the judge on how to make those determinations so luckily there is some case law that goes a little bit more specifically into it, and that comes from a 1995 case, James v. Hopmann, 1995, OK CIV APP 105.
That listed various factors that were actually taken from court cases in other states, and then that was re-stated in a more recent case in 2016, Reed v. Remmert 2016, OK CIV APP 65. That lists 11 factors for the court to consider when determining whether it’s in the best interest to have the child take the surname of the father.
Those are the identification of the child as part of the family unit, the effect on the child’s relationship with each parent, the motivation of the parties. Why do the parties want the child to have the various names?
The effect the failure to change name will have on furthering the estrangement of the child from a father exhibiting a desire to preserve the parental relationship, the age of the child and how long the child has had the current name, the effect of the change of the child’s surname on the preservation and the development of the child’s relationship with each parent, and the degree of community respect associated with the present and proposed surname, the possibility that a different name may cause insecurity or lack of identity, the use of a particular surname for a substantial period of time without objection from the parties, the preference of the child.
Depending on the child’s age, the court may hear the preference of the child. The difficulty the child may experience with the proposed surname, embarrassment, or inconvenience that may result if the child’s surname differs from that of the custodial parent.
It doesn’t say on the list but also we see courts considering how it may affect siblings and whether they have a different name or not, so that’s to be considered as well. This is not an exhaustive list, this is recommendations from the Oklahoma Court of Civil Appeals to trial judges, but when the trial judge has given a standard like the best interest it’s pretty broad, lot of discretion there, there may be other factors that affect it.
Practically speaking, I know I’ve seen judges factor very much on how much the father has been involved and simply how much the father has been involved in paying child support as well. Although this court declined to make that a factor, it could be argued that that may affect some other things that are factors, and I’ve certainly seen judges look into whether the father has been paying child support as a basis in determining whether it’s in the best interest.
If you’ve got a question on whether how this may apply to you, as far as whether you are a mom that wants to maintain the child’s name or a father that’s wanting to change it to the father’s surname, you’re going to want to talk to an attorney about your specific circumstances. So if you want to talk to an attorney in Tulsa at my office you can get that scheduled by going to MakeLawEasy.com.