Decisions from the courts and statutory law are inconsistent and raise at least as many questions as they answer.
In 1989, the Court of Appeals, the court one step below the Tennessee Supreme Court, held that a mother of a child born during marriage could not change the child's last name to the last name of her new husband, even though the child had been only a year and a half old at the time of the divorce and less than two years old when the mother remarried and the child identified her step-father as "Daddy."
Four and a half years later the biological father went to court to stop the mother from using the new last name. The trial court decided the mother should not be allowed to used the new last name unless she could show some misconduct by the father "to justify a forfeiture of his right, or where his name is positively deleterious to the child." In other words the mother would have to prove that using the father's last name would hurt the child. Halloran v. Kostka, 778 S.W.2d 454 (Tenn.App. 1989).
Under Tennessee law generally, there is no need to get court approval of a name change, and the mother has the right to name the child, but one specific code section (T.C.A. 68-3-305) states that if the mother is not married at the time of the child's birth the child's last name must be the mother's last name, unless the mother and father both fill out certain required paperwork and then the child can have the father's last name. Legislation dealing with legitimation of children says the Court shall determine what the child's name will be on the child's birth certificate (they are routinely reissued with a new last name) as part of the legitimation process, though the statute gives no guidance on deciding whether to allow the change in any specific case. (T.C.A. 36-2-311)
Then in the case of Re Madison Renee Baird, (1997, Case #01A01-9704-JV-00148), Tennessee's Court of Appeals had a situation in which the father filed a petition to legitimate his child only six weeks after the child's birth, and sought to change the child's last name his own; the Court of Appeals held that he should not be able to force the name change unless he proves that the name is in the child's best interests. The court further held that in order to change a child's last name, "minor inconvenience or embarrassment are not enough. Among the factors for courts to consider in cases of this sort are: (1) the child's preference, (2) the change's potential effect on the child's relationship with each parent, (3) the length of time the child has had its present surname, (4) the degree of community respect associated with the present and proposed surname, and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname."
The court then wrote that because the father "presented no evidence concerning how changing his daughter's surname would benefit the child... (and) stated only that he believed that the child's surname should `reflect his parentage' and that `the hyphenated last name would not adversely impact the child,'" the father could not force the name change. This follows the same reasoning the Court of Appeals used just a few years earlier in the case of Barabas v. Rogers, 868 S.W.2d 283 (Tenn.App 1993).
Under these decisions, even if both biological parents agreed to change the child's last name, it would not be allowed.... and this is clearly asinine.
My own advice is Tennessee law allows a name change without a court order, and that the custodial parent has the legal authority to do so, although dealing with various governmental bureaucracies may make changing the child's name on his or her records without a court's approval. And most judges will allow a name change requested by the custodial parent unless the name change is clearly likely to be harmful (a judge might not approve changing a child's name from Bill Jones to Son Of Satan), and if both biological parents join in the petition for a name change, the court will routinely approve it even without any showing whatsoever that it will benefit the child.
This leaves the question of changing the last name of the child over the objection of the other biological parent. For this a judge could go either way, and if both sides are willing to go through the expense, your case could also wind up being appealed... either to add to the confusion of Tennessee law on the matter, or perhaps to finally clear it up.
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