By: Janette Jordan
There are two types of name changes that occur in a family law case: the restoration of the Wife’s name to her maiden name or other previous name and the changing of the name of a minor child in a divorce or custody case.
In a divorce case, if you are the party seeking to have your maiden or other name restored you should indicate such in either the divorce petition or the response, depending on your status in the case. That being said, you do not have to make the decision right away, but it helps to indicate from the beginning that this is something you are considering. So long as you raise the issue with the court prior to the decree of dissolution entering you can change your name as part of the proceedings. It should be noted that the other side has no say or control in terms of your requested name change. Fortunately, statute (C.R.S. 14-10-120.2) also authorizes the filing of a request to restore a maiden name after the decree enters, should someone change their mind later on.
Typically, when going through a divorce, your first thought may be to want to put as much distance and sever as many ties as possible with the other party. However, it can be important to consider things like what the last name of your children is or how you are known professionally. Obviously, going through a divorce does not give you carte blanche to pick any name you want! You cannot change your name that would result in defrauding a third party, defrauding creditors, or would detrimental to any persons. Make sure that once you submit your proposed divorce decree and separation agreement, that it clearly states your requested name change, with the name spelled correctly. Again, if you elect to forego changing your name as part of the divorce, there is a procedure for doing so, within the divorce case, at another time.
Every once in a while, a party to a divorce or allocation of parental responsibilities (custody) case might ask the question about how and if they can change their child’s last name. One way is to seek a name change pursuant to In Re Marriage of Nguyen, 684 P.2d 258 (Colo. App. 1983), which sets forth the notion that Colorado courts do have the authority to change the name of a minor child based on common law. This request can be handled during the domestic relations proceeding and can alleviate additional filings down the road.
Another way is to file a Petition for a Name Change pursuant to C.R.S. §13-15-101, on behalf of the minor child. If your child is 14 years of age or older, then you must also accompany your Petition with proof of a fingerprint/criminal history background check with both the Colorado Bureau of Investigations (CBI) and the Federal Bureau of Investigations (FBI). These records must have been obtained no later than 90 days prior to the filing your Petition. Failure to comply with the timeliness of this requirement may result in your Petition being dismissed. In order to proceed, you will also be required to provide notice to the other parent. Either they consent to the name change and compete the requisite JDF 423 form or they must be served by certified mail. The court will schedule a hearing at which you will request that they find the name change to be in the best interests of the child.
The factors that the court will consider are:
- The reasons behind the name change;
- Age of the child and how long they have been using their current last name, or the requested last name;
- How the name change will impact the relationship with the other parent;
- Integration of the child into a family unit;
- Social ramifications of the proposed name change;
- Personal ramifications to the child and their connection to their heritage;
- Harmful actions by a parent that warrant a need to create separation based upon the name.
You will want to be as prepared as possible for your hearing, including providing exhibits and any witnesses necessary to testify. If your request is granted, then you will have to follow through with publishing the name change in the newspaper for a period of 21 days for at least three times. Then you will need to follow up with Bureau of Vital Statistics in order to change the birth certificate.
Setting aside the procedures and possibilities for changing your child’s name, it should be noted that you will likely need to be able to demonstrate a compelling reason to the court. Your own personal preferences will likely mean nothing to the court and seeking to change your child’s name during a divorce or custody case without a significant and valid basis could leave you in the precarious position of having the court believe you lack the ability to promote a relationship between your child and the other parent, one of the significant factors in C.R.S. 14-10-124. Frankly, judges are going to be hesitant to change a child’s name in most instances, but for perhaps making sure the child’s father is included. Finally, it should be noted that name changes for a child can also be sought as part of a paternity action pursuant to C.R.S. Title 19. The issue of changing a child’s name during divorce or child custody proceedings just doesn’t come up that often. Knowing the law matters regardless of which side of a request you’re one.