Who Names the Child Born After the End of a Relationship?

It is customary (but not necessarily legally required, deoending on the state) for a child to receive the last name of at least one of his or her parents. When the parents’ relationship ends before the child is born, however, which parent’s name to use may be disputed. A recent case indicates that in Oregon, the custodial parent is likely to be allowed to name the child in most situations, but leaves open the possibility that the noncustodial parent may in some cases be given that privilege.

The case involved a brief marriage, during which the mother became pregnant. During the pregnancy, the parties discussed names for the child, with the assumption that the father’s last name would be the child’s last name. One or two months before the child was born, however, the mother sought a domestic violence protective order, and the parties separated. During the separation, the child was born, and the mother gave the child her birth name as its last name. The father did not contest the child’s name during the divorce, and the mother was awarded custody. When the child was seven months old, and two months after the divorce became final, the father moved to supplement the divorce judgment to have the child’s last name changed to his last name.

The general rule in Oregon is that the naming of a child is based on the child’s best interests. The father argued that the parties had had an agreement to give the child his name and that giving it the mother’s name could alienate the child from him. The Court of Appeals noted, however, that this argument implicitly assumes a preference for the father’s name which Oregon does not recognize. Instead, Oregon tends to favor the custodial parent, based on the general rule that custodial parents would be authorized to make major decisions for the child and on the tendency of growing children to identify with their custodial parents.

The court did recognize that in some cases, it would be appropriate to give a child the noncustodial parent’s last name, but it distinguished between initially naming the child and changing the name after the initial decision. Most likely, the noncustodial parent will need to show a compelling reason for the naming privilege, and will need to raise the issue as soon as possible. If you are in a dispute regarding the naming of a new child, be prepared to discuss the matter with a lawyer once the issue arises.


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