Changing your child’s name in a separation

A recent Court of Justice case shed some light on the factors to consider whether changing the surname of a child is in the best interest of the child. Often times, prior to separation, the child has the surname of one of the parents. Post separation, the other parent wants the child to share their surname as well.

The Change of Name Act allows the custodial parent to apply to the Registrar General to change the child’s name. However, the other parent can object but the onus is on the person objecting the change to prove on a balance of probabilities that the name is not in the best interest of the children.  In Schaafsma v Eaton, a 2019 case that actually proceeded to trial on the issue of name change, we see the following factors outlined by the judge as summarizing the jurisprudence in determining whether prohibition of a name change is in the child’s best interests:

a)  Whether the proposed name change will exclude the name of the non-custodial parent.

b)  The length of time a custodial parent has had sole custody of the child.

c)  Whether there is a continuing close relationship between the child and the non-custodial parent.

d)  Whether there would be any serious effect on the non-custodial parent.

e)  Whether either parent has displayed any malice or improper motivation.

f)  The age of the child and the weight to be given to the child’s wishes, in light of that age.

g)  The length of time the child has had its name.

h)  The surnames of any siblings.

The Court further noted that “The test is one of best interests from the child’s perspective, as opposed to what may or may not be in the parent’s interests.”

Further, parents should understand that they should not apply to the family court to order a change in the child’s name. They should first apply to the Registrar, following which they could proceed in family court to dispense with the other party’s consent to change the name. At that point, the above factors would be considered.

*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.