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Georgia Case Law Update – Denney v. Denney

It is not often that a case involving a child's given name goes all the way up to the Georgia appellate courts, but the Supreme Court of Georgia recently heard a case on that very issue. In Denney v. Denney, the parties were separated and going through a divorce when their child was born. Denney v. Denney, S16F1670 (2017) . Despite the fact that the parties were married at the time of the birth, the mother did not list the father on the birth certificate and put her maiden name as the child's last name, rather than her married name/father's last name. Several years later, the parties finally reached a settlement agreement, resolving all issues except for "the issue of the name change of the minor child." Id. The trial court subsequently issued an order to add the father's name to the birth certificate, as he was both the legal and biological father of the child, but held that the last name of the child as listed on the birth certificate "was not in error and this Court is without legal authority to change the name of the minor child as the parties have not consented to the name change as required by O.C.G.A. §19-12-1(c)." Id.

The father appealed, arguing that Georgia law requires that the surname of the child shall be the legal surname of the mother at the time of the birth. O.C.G.A. §31-10-9(e)(5). The Supreme Court of Georgia, however, found that this subsection was not applicable to this case. Rather, the Court looked at subsections (e)(1) and (e)(3) of the aforementioned statute to hold that the trial court does have authority "to make a finding with regard to the child's surname upon determining the paternity of the child." See Denney. Because Georgia does not set out a standard for making this determination, the Court looked at other jurisdictions and help that the trial court "should consider the best interest of the child when making a finding with regard to a minor child's surname pursuant to O.C.G.A. §31-10-9(e)(3)." Id. Thus, the Georgia Supreme Court vacated the order and remanded the case back to the trial court to make a finding on the surname issue.

It is important to note that the Georgia Supreme Court could not just make a ruling on whether the child's name should be changed. The trial court is the place where the facts of the case are established and evidence is heard. Thus, the parties have to go back to the trial court to present evidence on this issue and the trial court will make its ruling based on the best interest of the child standard that was established by the Georgia Supreme Court in this case.

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