Legal Question in Family Law in California

The birth certificate is not controlling of anything, and has not been for over a decade. What matters is if he is the legally recognized father, or just the father in fact without ever establishing his legal paternity. If he has been made the legal father, by a statutory declaration of paternity, or by a judgment of the court in a paternity determination proceeding, you cannot change the children's names without his consent or a court order overruling his objection to the change. If there is no legal determination of his paternity, then you can.

CA requires a court order to change someone's name unless it is for marriage. A minor requires consent of all applicable parents. Generally even if the other parent has not been involved they require you notify them of the proceedings.

A minor has no common law right to change his or her name, but a parent may apply for a change of name on the minor�s behalf. (In re Trower (1968) 260 Cal.App.2d 75, 77.)

A parent petitioning for a name change on behalf of a minor must comply with Code of Civil Procedure section 1276. If the petition is filed by only one parent, the petition shall specify the address of the other parent, if known. (Code of Civ. Proc., � 1276 subd. (c).)

If the non-petitioning parent is living and does not join in consenting to the petition, the petitioning parent must cause the non-petitioning parent to be served with notice 30 days prior to the hearing. (Code of Civ. Proc., � 1277 subd. (a).)

If the non-petitioning parent does not receive actual notice, they may move the court to set aside the decree changing the minor�s name. (In re Malley (1960) 185 Cal.App.2d 135, 137.)

A parent has some legal rights to control a minor�s use of a surname, but a parent�s sex or marital status does not create any primary rights or protectable interest in the minor�s surname. �With the adoption of the California Uniform Parentage Act no longer can it be said that a parent has a primary right or protectible interest in having his or her child bear and maintain that parent�s surname merely because of the parent�s sex and marital status with respect to that child�s other parent at the time the child is born.� (Donald J. v. Evna M. (5th Dist. 1978) 81 Cal.App.3d 929, 936-937.)

In resolving parental disputes over a child�s surname, the court�s sole consideration is the child�s best interest, and a father does not have any primary right to have a child bear his name. (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 645.)

The proceeding may be filed in a parentage action, otherwise the proceeding must conform with the provision of Code of Civil Procedure section 1275 et seq.

(In re Stevens (1982) 31 Cal.3d 403, 404.)