Changing a child’s surname is a common occurrence after separation or divorce. The reasons for making this decision are unique to each case. Usually, a mother has reverted to her maiden name and wishes to change their child’s name as well. But, how easy is it to legally change a child’s surname? Our family lawyer in Brisbane from Emerson Family Law weighs in on this particular issue and offers some legal advice.
You Need Consent From Both Parents
Under Section 4 of the Family Law Act 1975, changing a child’s name is considered a major long-term issue in relation to the care, welfare and development of that child. Before a child’s surname can be changed, there must be consent between both parties. This will apply to your situation if:
- The other parent is listed on the child’s birth certificate; and
- The other parent also has ‘Shared Parental Responsibility’ for the child.
Shared Parental Responsibility is where both parents have a right to be involved in all long-term decisions concerning their children. Our family lawyer in Brisbane states that if no agreement is made, a parent will need to apply to the Court for an Order to change a name.
A Single Parent Applying for a Name Change
A single parent can apply to change their child’s surname if any of the following applies:
- If you are the child’s mother and the father’s details are not listed on the birth certificate;
- A parent has a Queensland Magistrates Court Order; or
- One parent is deceased (death certificate required).
If one parent is not listed on the child’s birth certificate, they may not legally be recognised as the parent, therefore forfeiting any parental responsibility. Our family lawyer in Brisbane would like to stress that there are certain situations where a parent not listed on a birth certificate is still legally recognised as having shared parental responsibility. Consult a legal professional if this applies to you.
Parental Responsibility and Changing a Child’s Surname
Under Section 61DA the Family Law Act, there is a presumption that both parents have equal Shared Parental Responsibility. According to our family lawyer in Brisbane, this presumption does not apply if:
- A parent engaged in abuse of the child; or
- A parent engaged in family violence; or
- It is not in the best interests of the child
Shared responsibility also only applies unless a Court Order has been made to specifically name only one parent has having ‘Sole Parenting Responsibility’ of the child. This means that a parent does not have to consult with the other parent before making any long-term decisions.
Process to Change a Child’s Surname
According to our family lawyer in Brisbane, the process to change a child’s name is quite simple.
Assuming that both parents have approved the name change, or, one parent holds Sole Parental Responsibility, an application must be completed and sent to the Registry of Births, Deaths and Marriages in the State where the child was born. If the child was born overseas, the application should be made in the State where the child resides, as long as they have lived there for at least 12 months.
If a child is 12 years or older, they must also agree to the name change, unless the Court approves and orders the change.
Limits apply to how many times you can change your child’s name:
- First names can only be changed in the first 12 months after birth and once before they reach 18; and
- Surnames can be changed once every 12 months.
It is not illegal for a parent to start using an unregistered surname for their child. This is referred to as an ‘informal’ name.
Considerations For a Name Change
If the Court deems a child unable to comprehend the consequences changing their name due to age or disability, the Court will make the decision based on whether or not it is in the best interests of the child. In addition to the child’s welfare, the Court will also consider:
- The reasons for the name change;
- Any long and short term effects of the change;
- Any confusing of identity for the child;
- Any embarrassment to the child;
- The effect the name change would have on the relationship between the child and the other parent; and
- How the child identifies with each parent.
Speak to a Family Lawyer in Brisbane About Changing Your Child’s Name
If you need any additional legal advice specific to your case, please get in touch to speak to a family lawyer in Brisbane. Our team are qualified professionals with experience in all children’s matters. Make an enquiry through our website, or call us on 07 3211 4920.