If you are a custodial parent, and you have ever wondered whether it would be possible to change your child’s last name from you ex-spouses last name to your current last name, the short answer to your question is: Yes, it is possible to change your minor child’s last name post-divorce. But, doing so may require your ex-spouses cooperation.
In Georgia, a parent may change his or her child’s last name by filing a Petition for Name Change. According to Georgia law, specifically O.C.G.A. § 19-12-1, a parent desiring to change their child’s last name must: 1) File a verified petition in the child’s county of residence requesting the name change and stating why the change is requested, 2) Obtain the written consent of the other parent, and file that consent with the pleading, 3) Publish a notice of filing in the county’s official legal publication within seven days of filing, and 4) Serve the petition on the other parent. O.C.G.A. § 19-12-1. Once notice is published, and the other parent has been served, written objections may be filed by any interested parties. Id. If no objections are filed, and both parents consent to the name change, the name change will likely be granted. But, if the other parent does not consent to the name change, the petition is unlikely to be granted. So, as mentioned above, to successfully change your child’s name post-divorce, you will most likely need your ex-spouses cooperation and consent.
However, there is one exception to this rule. Your ex-spouse’s written consent is not necessary to change your child’s last name if he or she “has not contributed to the support of the child for a continuous period of five years or more immediately preceding the filing of the petition.” O.C.G.A. § 19-12-1 (c); Wearn v. Wray, 139 Ga. App. 363, 364 (Ga. Ct. App. 1976). In other words, if your ex-spouse has abandoned your child by not paying child support or providing any form of support to you child for the last five years, you may file a Petition for Name Change, and that Petition may be granted, without the consent of the other parent. In a situations such as this, the other parent may still file and objection with the court
In Wearn, mother filed a petition to change her son’s last name to match her last name. Id. at 363. The father had legal visitation rights, was making child support payments, did not sign a written consent to the name change, and orally objected to the name change during the hearing. Id. at 363-364. The trial court denied mother’s petition and the Georgia Court of Appeals affirmed. Id. at 364.
Our facts are very similar to Wearn. Our PC seeks to change her sons’ names to her current last name, but it is very likely father will object. Although there is some history of abuse during the marriage, and father does not consistently exercise visitation, absent a showing that he has failed to pay child support (or otherwise provide support) over the last five years, PC will not prevail.
Although a moving parent is unlikely to prevail without the consent of the other parent, absent some showing of abandonment, the court may still hold a hearing on the matter, considering the petition and the contesting parent’s objections. Id. See In re Scott, 288 Ga. App. 374, 375 (Ga. Ct. App. 2007)(“[I]f all the procedural requirements are met for changing the name of a minor child, and no objection is filed, the court shall proceed at chambers at such date as the court shall fix to hear and determine all matters raised by the petition and to render final judgment or decree thereon.”)(internal quotations omitted); Brown v. Waters, 208 Ga. App. 866, 866 (Ga. Ct. App. 1993)(“If written objections are filed, objecting to the change of the name of the minor child, by any interested or affected party within the time specified, the court shall thereupon proceed to hear and determine the matter.”)(internal quotations and citations omitted). At a hearing on a contested name change, the petitioning parent bears the burden of proof, and the court will consider the best interests of the child in making its decision. Scott at 375.
Here, even though the statue requires each parent’s written consent to be filed with the petition, in light of the three cases cited above, PC will likely be granted a hearing on the matter regardless. At the hearing, father will be able to air his objections, and PC will bear the burden of proving that a name change is in the children’s best interests. But, as stated above, absent a showing of abonnement or some other very compelling reason, the name change will likely not be granted without father’s consent.