• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Can my stepson have my name?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

kyleent

Junior Member
What is the name of your state? NC

Here is the deal....

I have a stepson who has his mother's maiden name. His father knows he exists. He is not on the birth certificate, he has never seen him and has never made ANY contact at all. My son (step) is 5 now and I have been with his mom since he was 1.5.

My wife wants his name to match and I certianly have no issue with it as I love him as my own ( we also have a 2 yo son).

Can we change his last name? She doesn't even know how to find his "father". Who pays no support, etc if that matters...

What can we do and how?

Please don't bother with the "him being loved is all that matters" replies. Obviously I know that in the end thats the case. But in every way but blood he is my son. I raise him, I pay for him, I hold him when he cries and I would trade my life for his. I would like to share my name with him as well.
 


What is the name of your state? NC

Here is the deal....

I have a stepson who has his mother's maiden name. His father knows he exists. He is not on the birth certificate, he has never seen him and has never made ANY contact at all. My son (step) is 5 now and I have been with his mom since he was 1.5.

My wife wants his name to match and I certianly have no issue with it as I love him as my own ( we also have a 2 yo son).

Can we change his last name? She doesn't even know how to find his "father". Who pays no support, etc if that matters...

What can we do and how?

Please don't bother with the "him being loved is all that matters" replies. Obviously I know that in the end thats the case. But in every way but blood he is my son. I raise him, I pay for him, I hold him when he cries and I would trade my life for his. I would like to share my name with him as well.
Why not adopt him? Become his legal Father and then have the name change. Just changing the name doesn't legally make you his Father.
 

JETX

Senior Member
Can we change his last name?
Yep. All you have to do is get the FATHER's permission in writing and then go to court and try to get an order allowing the change.

She doesn't even know how to find his "father". Who pays no support, etc if that matters...
Then she better start trying to find a PI or some other method to locate him to get his permission.
 
Yep. All you have to do is get the FATHER's permission in writing and then go to court and try to get an order allowing the change.


Then she better start trying to find a PI or some other method to locate him to get his permission.

If you consider my suggestion for adoption, you'll need to do the same thing.
 

LdiJ

Senior Member
I will respectfully disagree with both Jetz and bononos on this issue.

We know from cases that have been here, as well as case law, that its sometimes possible to either change a child's last name or have an adoption go through without the permission of the biological parent.

When a parent has been found to have abandoned their biological child, these things CAN happen. In most states this biological father would meet the standards for abandonment.

I would suggest that you seriously discuss the option of stepparent adoption with your wife, and then get a consult with a local adoption attorney...NOT a family law attorney, an adoption attorney.
 
I will respectfully disagree with both Jetz and bononos on this issue.

We know from cases that have been here, as well as case law, that its sometimes possible to either change a child's last name or have an adoption go through without the permission of the biological parent.

When a parent has been found to have abandoned their biological child, these things CAN happen. In most states this biological father would meet the standards for abandonment.

I would suggest that you seriously discuss the option of stepparent adoption with your wife, and then get a consult with a local adoption attorney...NOT a family law attorney, an adoption attorney.
Yes, so true, but I was more considering that the Bio-Dad might just agree. It may be a slightly easier path to try, but will prove to be harder if he doesn't. So, abandonment may be a good idea.
 

LdiJ

Senior Member
Yes, so true, but I was more considering that the Bio-Dad might just agree. It may be a slightly easier path to try, but will prove to be harder if he doesn't. So, abandonment may be a good idea.
Actually, since she doesn't even know where the dad is....it might be fairly simple anyway....which is why consulting an adoption attorney is critical.
 

Gracie3787

Senior Member
What is the name of your state? NC
His father knows he exists. He is not on the birth certificate, he has never seen him and has never made ANY contact at all. She doesn't even know how to find his "father". Who pays no support, etc if that matters.
Name change or adoption would both require notification/consent/or court order of the LEGAL bio father. I'm not real sure, but I believe that all states' have provisions for making a diligent search for a legal or putitive father.

The question that no one asked is, is the bio father the LEGAL father in any way? Have there ever been any court orders establishing paternity or CS/custody/visitation? If there are, then there is a legal father.

Either way, your wife will most likely need to make a diligent search for the father before doing anything. She should get a consult with an attorney to find out exactly what your state requires for a diligent search.

I do agree with LdiJ, IF the father is the legal father and has made no contact and paid no CS, abandonment will most likely apply, but abandonment cannot be used if the father has never been demmed to be the legal father.
 

Grace_Adler

Senior Member
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-1111.html

(a) The court may terminate the parental rights upon a finding of one or more of the following:

(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B‑101 or a neglected juvenile within the meaning of G.S. 7B‑101.

(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.

(3) The juvenile has been placed in the custody of a county department of social services, a licensed child‑placing agency, a child‑caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.

(4) One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement.

(5) The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights:

a. Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or

b. Legitimated the juvenile pursuant to provisions of G.S. 49‑10 or filed a petition for this specific purpose; or

c. Legitimated the juvenile by marriage to the mother of the juvenile; or

d. Provided substantial financial support or consistent care with respect to the juvenile and mother.

(6) That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B‑101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.

(7) The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B‑500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.

(8) The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home; or has committed murder or voluntary manslaughter of the other parent of the child. The petitioner has the burden of proving any of these offenses in the termination of parental rights hearing by (i) proving the elements of the offense or (ii) offering proof that a court of competent jurisdiction has convicted the parent of the offense, whether or not the conviction was by way of a jury verdict or any kind of plea. If the parent has committed the murder or voluntary manslaughter of the other parent of the child, the court shall consider whether the murder or voluntary manslaughter was committed in self‑defense or in the defense of others, or whether there was substantial evidence of other justification.

(9) The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home.

(b) The burden in such proceedings shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence. (1977, c. 879, s. 8; 1979, c. 669, s. 2; 1979, 2nd Sess., c. 1088, s. 2; c. 1206, s. 2; 1983, c. 89, s. 2; c. 512; 1985, c. 758, ss. 2, 3; c. 784; 1991 (Reg. Sess., 1992), c. 941, s. 1; 1997‑390, ss. 1, 2; 1997‑443, s. 11A.118(a); 1998‑202, s. 6; 1998‑229, ss. 11, 28; 1999‑456, s. 60; 2000‑183, s. 11; 2001‑208, s. 6; 2001‑291, s. 3; 2001‑487, s. 101; 2003‑140, s. 3; 2005‑146, s. 1.)

So with that said, she has several issues she can file a TPR (Termination of Parental Rights) on. And paternity doesn't have to be established as the statute indicates.

However, she will have to try to make an effort to find him, if that parent can't be located, that is also grounds to terminate.
 

Grace_Adler

Senior Member
In cases of parents not located....

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-1105.html


§ 7B‑1105. Preliminary hearing; unknown parent.

(a) If either the name or identity of any parent whose parental rights the petitioner seeks to terminate is not known to the petitioner, the court shall, within 10 days from the date of filing of the petition, or during the next term of court in the county where the petition is filed if there is no court in the county in that 10‑day period, conduct a preliminary hearing to ascertain the name or identity of such parent.

(b) The court may, in its discretion, inquire of any known parent of the juvenile concerning the identity of the unknown parent and may appoint a guardian ad litem for the unknown parent to conduct a diligent search for the parent. Should the court ascertain the name or identity of the parent, it shall enter a finding to that effect; and the parent shall be summoned to appear in accordance with G.S. 7B‑1106.

(c) Notice of the preliminary hearing need be given only to the petitioner who shall appear at the hearing, but the court may cause summons to be issued to any person directing the person to appear and testify.

(d) If the court is unable to ascertain the name or identity of the unknown parent, the court shall order publication of notice of the termination proceeding and shall specifically order the place or places of publication and the contents of the notice which the court concludes is most likely to identify the juvenile to such unknown parent. The notice shall be published in a newspaper qualified for legal advertising in accordance with G.S. 1‑597 and G.S. 1‑598 and published in the counties directed by the court, once a week for three successive weeks. Provided, further, the notice shall:

(1) Designate the court in which the petition is pending;

(2) Be directed to "the father (mother) (father and mother) of a male (female) juvenile born on or about__________________________ in

(date)

County, ,

(city)

______________________________________ , respondent";

(State)

(3) Designate the docket number and title of the case (the court may direct the actual name of the title be eliminated and the words "In Re Doe" substituted therefor);

(4) State that a petition seeking to terminate the parental rights of the respondent has been filed;

(5) Direct the respondent to answer the petition within 30 days after a date stated in the notice, exclusive of such date, which date so stated shall be the date of first publication of notice and be substantially in the form as set forth in G.S. 1A‑1, Rule 4(j1); and

(6) State that the respondent's parental rights to the juvenile will be terminated upon failure to answer the petition within the time prescribed.

Upon completion of the service, an affidavit of the publisher shall be filed with the court.

(e) The court shall issue the order required by subsections (b) and (d) of this section within 30 days from the date of the preliminary hearing unless the court shall determine that additional time for investigation is required.

(f) Upon the failure of the parent served by publication pursuant to subsection (d) of this section to answer the petition within the time prescribed, the court shall issue an order terminating all parental rights of the unknown parent. (1977, c. 879, s. 8; 1987, c. 282, s. 1; 1998‑202, s. 6; 1999‑456, s. 60.)

This document (also available in PDF and RTF formats) is not an official document.
Please read the caveats on the main NC Statutes page for more information.

Actually, many of the family law attorneys here handle this kind of thing quite frequently and they do just fine. Or you can do this yourself. It's really not difficult. Also, this matter will be heard in front of the Clerk of Court. If you do it yourself, you'll just have to pay filing fees and you'll have a homestudy done by DSS and have to pay them..um, it's either $250 or $200 last I heard.

You can file for the TPR and the Stepparent Adoption all at once.

Be aware, once this is done, she can never file for child support from him.

If you want the forms for all of this, you can go to the courthouse or download and print them.

http://info.dhhs.state.nc.us/olm/forms/forms.aspx?dc=dss

You need to download,
Decree of Adoption..
http://info.dhhs.state.nc.us/olm/forms/dss/dss-1814-ia.pdf

Consent to Adoption by Parent Who is Spouse of Stepparen
http://info.dhhs.state.nc.us/olm/forms/dss/dss-5189-ia.pdf

If you find him and he consents, he needs this..
Consent to Adoption by Parent Who is Not the Stepparent's Spouse
http://info.dhhs.state.nc.us/olm/forms/dss/dss-5190-ia.pdf

Their supposed to have one for Petition for Adoption of a Minor Child Stepparent but all I see is this one.. better ask first if you can use it, they may make you go with the one that says stepparent.. they have the one in Spanish but not English.:mad:
http://info.dhhs.state.nc.us/olm/forms/dss/dss-5162-ia.pdf

There may be other forms that you will need. Just go to the courthouse and tell them what you are doing and they should give you what you need.. that's if you're doing it yourself.
 

Grace_Adler

Senior Member
If you're just doing a name change.. just remember, this does not give you any legal rights but still, here are the statutes..

http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bychapter/chapter_101.html

§ 101‑2. Procedure for changing name; petition; notice.

A person who wishes, for good cause shown, to change his or her name must file an application before the clerk of the superior court of the county in which the person lives, after giving 10 days' notice of the application by publication at the courthouse door.

An application to change the name of a minor child may be filed by the child's parent or parents, guardian, or guardian ad litem, and this application may be joined in the application for a change of name filed by the parent or parents. Nothing in this section shall be construed to permit one parent to make an application on behalf of a minor child without the consent of the other parent if both parents are living; except that a minor who has reached the age of 16 years, upon proper application to the clerk, may change his or her name with the consent of the parent who has custody of the minor and has supported the minor, without the necessity of obtaining the consent of the other parent, when the clerk of court is satisfied that the other parent has abandoned the minor. A change of parentage or the addition of information relating to parentage on the birth certificate of any person is governed by G.S. 130A‑118.

The consent of a parent who has abandoned a minor child is not required if a copy of an order of a court of competent jurisdiction adjudicating that parent's abandonment of the minor if filed with the clerk. If a court of competent jurisdiction has not declared the minor to be an abandoned child, the clerk, on 10 days' written notice by registered or certified mail, directed to the last known address of the parent alleged to have abandoned the child, may determine whether the parent has abandoned the child. If the parent denies that the parent abandoned the child, this issue of fact shall be transferred and determined as provided in G.S. 1‑301.2. If abandonment is determined, the consent of the parent is not required. Upon final determination of this issue of fact the proceeding shall be transferred back to the special proceedings docket for further action by the clerk. (1891, c. 145; Rev., s. 2147; C.S., s. 2971; 1947, c. 115; 1953, c. 678; 1955, c. 951, s. 3; 1957, c. 1442; 1959, c. 1161, s. 7; 1971, c. 444, s. 1; 1995, c. 509, s. 135.2(f); 1999‑216, s. 13.)



§ 101‑3. Contents of petition.

The applicant shall state in the application his true name, county of birth, date of birth, the full name of parents as shown on birth certificate, the name he desires to adopt, his reasons for desiring such change, and whether his name has ever before been changed by law, and, if so, the facts with respect thereto. (1891, c. 145; Rev., s. 2147; C.S., s. 2972; 1945, c. 37, s. 1; 1957, c. 1233, s. 1.)



§ 101‑4. Proof of good character to accompany petition.

The applicant shall also file with said petition proof of his good character, which proof must be made by at least two citizens of the county who know his standing: Provided, however, proof of good character shall not be required when the application is for the change of name of a child under 16 years of age. (1891, c. 145; Rev., s. 2148; C.S., s. 2973; 1963, c. 206.)



§ 101‑5. Clerk to order change; certificate and record.

If the clerk thinks that good and sufficient reason exists for the change of name, it shall be his duty to issue an order changing the name of the applicant from his true name to the name sought to be adopted. Such order shall contain the true name, the county of birth, the date of birth, the full name of parents as shown on birth certificate, and the name sought to be adopted. He shall issue to the applicant a certificate under his hand and seal of office, stating the change made in the applicant's name, and shall also record said application and order on the docket of special proceedings in his court. He shall forward the order to the State Registrar of Vital Statistics on a form provided by him. If the applicant was born in North Carolina, the State Registrar shall note the change of name of the individual or individuals specified in the order on the birth certificate of that individual or those individuals and shall notify the register of deeds in the county of birth. If the applicant was born in another state of the United States, the State Registrar shall forward the notice of change of name to the registration office of the state of birth. (1891, c. 145; Rev., ss. 2149, 2150; C.S., s. 2974; 1955, c. 951, s. 4; 1957, c. 1233, s. 2; 1971, c. 444, s. 2.)



§ 101‑6. Effect of change; only one change, except as provided.

(a) When the order is made and the applicant's name changed, he is entitled to all the privileges and protection under his new name as he would have been under the old name. No person shall be allowed to change his name under this Chapter but once, except that he shall be permitted to resume his former name upon compliance with the requirements and procedure set forth in this Chapter for change of name, and except as provided in subsection (b) of this section.

(b) For good cause shown, and upon compliance with the requirements and procedure set forth in this Chapter for change of name, the name of a minor child may be changed not more than two times under this Chapter. (1891, c. 145; Rev., ss. 2147, 2149; C.S., s. 2975; 1945, c. 37, s. 2; 1991, c. 333.)



§ 101‑7. Recording name change.

When the name of any individual, corporation, partnership, or association has been changed in a manner provided by law, any attorney licensed to practice law in this State may file an affidavit with the clerk of superior court stating facts concerning the change of name. The clerk shall cause the affidavit to be filed and indexed among the records of his office, pursuant to G.S. 7A‑180(3) and G.S. 7A‑343(3). The clerk shall also forward a copy of the affidavit under the seal of his office to the clerk of superior court of any other county named in the affidavit where it shall also be filed and indexed in accordance with this section. Affidavits filed and indexed under this section are for informational purposes only and neither the affidavit nor the manner of its filing and indexing shall in any manner affect the rights or liabilities of any person. (1971, c. 592, s. 1.)



§ 101‑8. Resumption of name by widow or widower.

A person at any time after the person is widowed may, upon application to the clerk of court of the county in which the person resides setting forth the person's intention to do so, resume the use of her maiden name or the name of a prior deceased husband or of a previously divorced husband in the case of a widow, or his premarriage surname in the case of a widower. The application shall set forth the full name of the last spouse of the applicant, shall include a copy of the spouse's death certificate, and shall be signed by the applicant in the applicant's full name. The clerks of court of the several counties of this State shall record and index such applications in the manner required by the Administrative Office of the Courts. (1979, c. 768; 1981, c. 564, s. 2; 1993 (Reg. Sess., 1994), c. 565, s. 2.)
 

JETX

Senior Member
Wow.. Grace, you get an A in 'cut-n-paste'!!
Problem is.. you get an F in 'concise and brief'... and an 'F' for being 'off-topic'.
 

Grace_Adler

Senior Member
ha ha ha

Yeah-- I wasn't short and brief but I should get another A for being helpful and posting the statutes here for the poster where they are more easily accessible since some users aren't computer savvy enough to 'cut and paste' the links. (Not accusing our poster of not being savvy enough but we have no way of knowing how computer literate they are so I was just trying to be nice.)

Also, how was I 'off-topic'? :confused: The poster wanted to know about 'name changes' so I supplied the statutes.

A suggestion was made about stepparent adoption and a TPR, (and they did ask what they can do about their situation and this is one of the things they can do) which I was going to suggest myself, so I tried to be helpful by giving them all the info they needed. So......? I mean, if I'm 'off topic' so is everyone else? Si?
 
Last edited:

Grace_Adler

Senior Member
Does that mean I can give you an F for giving the wrong information?

Sorry, I meant to add that you do get an A for being short. :p

ha ha ha
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top