What’s in a Name? Post-Divorce Petitions to Change Kids’ Surnames

 Posted on January 23, 2015 in Child Custody

Changing a last name is a common practice amongst recent divorcees who may seek a stronger sense of finality in their lives after a divorce. Many ex-spouses, primarily those with custody of the children, take it a step further by filing a petition to also change the last names of their children.

Changing a child's last name may be pursued for a multitude of reasons—to create more stability for the children; to remove obvious remnants of a dissolved marriage; a remarriage or adoption occurred and an ex-spouse wants the children to adopt the new husband's last name; or simply for a fresh start. Whatever the motivation, it is advantageous to retain a qualified attorney who can help you successfully navigate through the process and achieve your desired outcome.

How Does the Process Work?

Unlike changing your own last name, which is generally a simple process, changing your children's last name can be complicated. When considering a name change—presuming all the appropriate filings are made without error or delay—the court will look at the rights of both parents. Thus, the process is relatively simple when both parents consent. On the other hand, if one parent does not consent to the name change, the other parent must demonstrate why the change is in the best interests of the child.

Best Interests of the Child

Similar to the assessment performed in child custody cases, Section 602 of the Illinois Marriage and Dissolution of Marriage Act directs the court to the "best interest test" to determine whether to grant or deny a petition to change a child's name. In accordance with the best interest test, the court must take a child-centric approach, considering all relevant factors that directly or indirectly involve and impact the welfare of a child.

Particularly in the context of name changes for children, the judge will consider:

• The wishes of the child's parents and anyone who has physical custody of the child;
• The wishes of the child and the reasons for those wishes;
• The relationship between the child and parents or anyone who has physical custody of the child (including siblings, step-parents, and step-siblings); and
• The child's adjustment to home, school and community.

A judge may also consider additional factors such as the length of time the father's name has been used and the need of the child to identify with a new family unit due to remarriage or adoption. Finally, a judge will balance all factors, coupled with any evidence offered in support of or against the name change to decide which name is in the child's best interest.

Can a Judge Deny a Petition?

It is not uncommon for a judge to deny a petition for a name change. A judge may decide to deny a petition for various reasons, but they are commonly denied for the following two reasons:

1. The name change is not in the best interests of the child. This is the most common reason for a denial. Similarly, a denial may result if the petitioner lacks sufficient evidence to support the petition. In the event of a denial under this ground, the petitioner will not be allowed to request a new hearing until there is a substantial change in the circumstances related to the request for a name change.
2. The petitioner made a mistake in the court process. If the petition is denied because the petitioner made a mistake in the court process, a judge may allow him or her to correct the mistake and request a new hearing.

The final decision is within the discretion of the judge hearing your case. It is important to note, however, that you retain the right to request a reconsideration of the court's decision or to file an appeal. Under Illinois law, you have 30 days from the date of the judge's decision to file an appeal. Equally important to note is that a name change will not affect any obligations of either parent with regards to child custody, child support, visitation, alimony or the child's inheritance rights. Changes that affect these obligations only occur when the parental roles are altered by court order, such as a new custody decree.

Contact a Divorce Attorney Today

The process of filing a petition to change a child's name after divorce can be demanding and complex. Attempting to file a petition without the assistance of an attorney can result in unnecessary delays or worse, a denial of your petition. Our skilled and experienced DuPage County divorce attorneys at Kathryn L. Harry & Associates, P.C. can effectively assist you in all aspects of your divorce and family law matters, including name changes for your children. Contact our office at and let us handle your post-divorce needs.