Legal Question in Family Law in South Carolina

birth certificate form info

My niece has been going through divorce proceedings for almost 2 years and still there is no end in sight.Last year she met someone,he moved in with her and last week she gave birth to his son. She filled out all the nessesary papers for his birth certificate,of course, putting her live in mate as the father. Shortly after she arrived home the lady from records called her asking why the fathers and babies name were different from hers. She told her that of course the divorce from her former husband was not yet final. The lady told her that because of sc state laws she would have to change the fathers name to that of her husband and give the child his name instead of the real fathers and that after the divorce was final then she could go back and give the child its rightful name. I have never heard of anything so ridiculous in all my life. When my daughter was born 11 years ago I was in the same situation and that was not an issue...There is no question who the father of the child is... she has had no contact with him in over 2 years except through lawyers not to mention that her estranged husband cannot have children...


Asked on 7/13/01, 11:09 pm

1 Answer from Attorneys
Charles Griffin Law Offices of The Griffin Firm, LLC

Re: birth certificate form info

In South Carolina, any children born during the marriage are presumed to be the children of the husband and wife, notwithstanding the fact that there is divorce litigation. This statute is probably unconstitutional, since it seems to intrude into one's privacy rights unreasonably, and also it may violate the equal protection clauses of the United States Constitution. Someone could bring a suit to enjoin enforcement of that statute via Title 42 USC Sec. 1983, and have it declared unconstitutional. I don't think that the state has any right intruding into how we name our children. Grandparents' visitation rights statutes were recently struck down as violating a parent's privacy rights.

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Answered on 7/21/01, 3:27 pm


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