Trying to add my last name to my child's name and his mother isn't willing. Don't see another option other than court, what should I expect?

[tylermajor]

What is the name of your state? Illinois

At the time of our child's birth, I didn't really think there was much significance to his last name and she didn't like my last name so we just gave him her last name on the birth certificate. I have joint custody of our son now, we're separated, never married, I take care of him at least 2 days a week if not three for some weeks. During our family court mediation sessions several years ago, I made a point to the lawyers that I wanted our son to have both of our last names. There was so much paperwork and so many details, and I guess I wasn't careful enough to look every detail over, but I later noticed that the lawyers didn't include that detail in the court agreement. So, as of right now, his legal name is her last name only. I mentioned this to her and she told me we could just do it ourselves without spending money in court. Now, a couple years later, our child is starting school, and the name has become an issue again. Now she's playing ignorant and saying this is all untrue and we both agreed in court that he'll only have her last name. Sadly, the paperwork technically supports this, and I feel this several year gap makes it look worse. I don't want to go to court, but she is unwilling to compromise. At the same time, he deserves to have my last name as well. How do I start this process? What should I expect? Am I wasting my time? If you don't agree with my pursuit, that's fine, but please keep those thoughts to yourself. Only looking for relevant responses. Thanks!!

 

[adjusterjack]

I can understand and support your desire for your son to have your name. Unfortunately, unless you have the mother's consent, a court isn't likely going to change it.

Why is the name becoming an issue now that the child is starting school?

 

[Taxing Matters]

How do I start this process? What should I expect? Am I wasting my time? If you don't agree with my pursuit, that's fine, but please keep those thoughts to yourself. Only looking for relevant responses. Thanks!!

It appears you would need to file a motion or petition with the court that has jurisdiction over the custody and support order that is now in effect:

Here, the family court determined custodial matters in a parentage action. That same court expressly reserved jurisdiction to resolve or modify the custody order. We note the parties agreed the child would be named Peyton Grace Wright in 2003. We also note Robin's designation within the joint custody agreement as “the primary custodial parent.” A child's name change in this context is an important decision. See generally 750 ILCS 45/6(e) (West 2004) (authorizing the court determining parentage to enter an order for visitation, custody, and support). That court should resolve this issue—an issue incident to custody.​

In re Wright, 363 Ill. App. 3d 894, 897, 844 N.E.2d 427, 429 (2006). The problem is that you have a high standard to meet to convince the court to change the child's name:

Because a change in the name of a child is a serious matter with far-reaching effects, section 21–101 permits such a change “only if the court finds by clear and convincing evidence that the change is necessary to serve the best interest of the child.” (Emphases added.) Id. In determining whether a name change is necessary to serve the best interest of a child, a court “shall consider all relevant factors,” including the wishes of the child's parents and any other person with physical custody of the child; the child's own wishes; the interaction between the child and any siblings, step-parents, or step-siblings; and the impact of a name change on the child's relationships within the child's home, school, and community. Id. ​

In re Tate Oliver B., 2016 IL App (2d) 151136, ¶ 30, 52 N.E.3d 351, 360 (Emphases in original). It is your burden, as the one asking for the name change, to prove by clear and convincing evidence that the change is necessary to serve the child's best interests. The standard of clear and convincing is higher than the usual preponderance of the evidence that applies in civil proceedings. The fact that you want the name change to reflect that he is your son is not good enough. The Illinois courts rejected a name change application where the father asserted that having the same last name would be helpful in bonding with the child and that the clinical psychologist hired by the father testified "it would be nice" if the two had the same last name. See Stockton v. Oldenburg, 305 Ill.App.3d 897, 238 Ill.Dec. 1013, 713 N.E.2d 259 (1999). You have to lay out a case with clear and convicing evidence that the change is necessary (i.e. not just desireable or nice) to serve the best interests of the child.

I think you would have had an easier time asserting case for the naming of the child in the initial paternity action where you would be determining the initial name of the child. Now the child is apparently about 5 or 6 years old and now the action would clearly be one for a name change in which you have to meet the burden described above. Waiting those years to finally raise the issue begs the question: if it was necessary for the best interest of the child, why did you not ask for it in the prior proceedings, and what is different that it would be necessary to change the child's name now? The child knows himself by the name he already has, and you are asking that the name be changed, which might result in confusion for the child. You'll have to overcome that potential problem to prove the case.

If this is important to you, see a family law attorney in Illinois. And do it soon. The longer you wait, the harder it will get. Ask the attorney what your realistic chances of success would be given the standard used in Illinois and what it would cost to litigate it and go from there.

While I understand why you want this and sympathize to some extent, I would also point out that for most kids it really wouldn't make much difference what last name he or she goes by. The name is not what defines a person or his/her relationships to others. He's still the same kid whether the name is changed or not. I mention this because I see some men get really torn up when they can't get their kid to have the same last name. They focus too much on the symbolism and overlook that the name doesn't fundamentally affect anything that really matters (at least in most cases). I'll end with a quote from that great bard, William Shakespeare, who had Juliet speak the following in the play Romeo & Juliet, in Act II, Scene 2:

What’s in a name? that which we call a rose​

By any other name would smell as sweet;​

 

[FlyingRon]

Understand, that the court isn't going to give much consideration to what YOU want or what MOM wants. The name change is going to be evaluated as to whether such is in the best interest of the child. Children are not chattel.

 

[xylene]

Bluntly, given the facts you lay out, there is no way you are going to get the court to compel a name change. And pursuing this seems like a matter of spite and not in the interests of you child or the coparenting relationship. Which honestly you should be trying to improve as the child enters school, not scuttle on restarting a battle you admittedly overlooked because the ppaperwork was too complex.