The New Jersey Supreme Court was just presented with a case where former spouses fought over what their children's surnames were going to be. According to that court, a child's name can only be changed if it is in his or her best interests. Usually, a court will agree that a name change is in the child's best interests if both parents file a petition jointly. The name change is also likely be awarded if one parent offers no protest to the name change, or if the other parent has deserted the child.

What happens when both parents disagree, and disagree strongly? The Supreme Court case mentioned above involved two parents who divorce a couple of years ago. The couple had two children together who had taken the father's last name. The mother was awarded primary custody, and both parents have legal custody. The divorce settlement did not address the children's last name, something which could have made this process so much smoother.

After the divorce, the father found out that the mother was filling out forms for her children with a hyphenated combination of her maiden name and his last name. The father filed a petition seeking to modify the custody agreement and asking for the children to keep his last name alone. The mother filed a petition for the children to have her maiden name alone. Initially, the mother won the case. An appeals court subsequently came up with a different ruling, saying that a custodial parent does not automatically have the sole right to choose the children's names. If the children were born in wedlock, and then a parent wants to change the name after divorce, this cannot be done unless it is in the child's best interests. This is because both parents agreed to the last name before the divorce.

The mother in this case could not simply exert a right as the custodial parent. She has the burden of proof for showing that the name change is in the child's best interests. What are the child's best interests? A judge can take several factors into account, according to the appellate court:

• How much time the child has had his or her current last name
• The family unit with which the child identifies
• Any difficulties the child might face from having a different last name than the custodial parent, such as embarrassment or unease
• Especially if the child is older, what the child wants
• Any history of parental abandonment or domestic violence
• Whether a last name carries some significance in the community
• Any wrong reasons for the name change
• Whether or not the mother will be changing, or has changed her name after remarrying
• The quality of the child's relationship with siblings with another last name
• Any ethnic or family significance in a last name
• How a name change could alter a child's relationship with either parent

Depending on the case, other factors may have to weigh in on the decision, such as whether or not the parents are married, or who ends up with custody after a divorce. In the end, it depends on how a court views the matter. Sometimes, a court may view the child's best interests as keeping the same name that he or she was born with. It is up to the parent who wants to change the name to show that the original name would be a disadvantage to the child. Other courts may have a different tack. A judge might instead decide that the parent objecting to a name change has to show that changing the original name would be a detriment. Finally, a court may use the same reasoning as the New Jersey Supreme Court did, deciding what the child's best interests are based on the context of the case alone. This is the usual way a judge would view the matter. If your child needs a name change, then contact a family law attorney today to learn what you can do. An experienced lawyer will understand your state's particular laws, and what your unique situation calls for.