Legal Question in Family Law in New Mexico

Re: name change

You can petition the court for a name change if the child is under 14. The "legal parent" is entitled to notice and may object. Here is the relevant language from the statute: "The parent or guardian of any resident of this state under the age of fourteen years may, upon petition to the district court of the district in which the petitioner resides and upon filing the notice required with proof of publication, if no sufficient cause is shown to the contrary, have the name of his child or ward changed or established by order of the court. When residents under the age of fourteen years petition the district court for a name change, the required notice shall include notice to both legal parents."

If you know where the father is you will have to serve him and give the court proof you served him. If you do not know where he is and after a good faith search can't find him, the notice by publication you have to do will probably be sufficient. The Court may require you to show proof of how diligently you searched for the father to give him notice. The statute is NMSA 1978 40-8, you can locate it in a public library or online, for example at the supreme court web site.

Once he has notice he may object but if he doesn't the court will likely grant the name change. If he does object you can just try to convince the judge it should be changed.

The fact he is not on the birth certificate suggests you may not have filed a suit to determine paternity so he may not be the "legal parent." You could argue that to the judge to justify not serving him actual notice, I don't know how that would turn out but I suspect it would be a hard sell. You still have to comply with the rest of the statute requiring notice by publication.