Can you change your child’s last name after divorce in Virginia? What if the other parent objects?

A person seeking a change of name for themselves or their minor child can petition, under oath, the circuit court where that person, or his or her minor child, resides for an order changing that person’s name.  Virginia Code Ann. § 8.01-217(a) and (b).  If a minor child’s name is sought to be changed, the parent who does not join in the application shall be served with reasonable notice of the application pursuant to Va. Code Ann. § 8.01-296 and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the child.  Va. Code Ann. § 8.01-217(a).  The court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in a case involving a minor, that the change of name is not in the best interest of the minor, order a change of name.  Va. Code Ann. § 8.01-217(c).

Section 8.01-217(c) appears to create a presumption that the minor child’s name shall be changed as desired unless it would not be in the child’s best interest.  The Supreme Court of Virginia, however, has flipped this apparent presumption on its head.  Instead, the person seeking the name change has the burden of proving, through clear and convincing evidence, that the change of name is in the child’s best interest.  Further, should a parent object to a change from his or her surname, the Court has created a list of factors one of which must be met for the change to be ordered.

The seminal case of Flowers v. Cain, 237 S.E.2d 111 (Va. 1977) creates the basic presumption in favor of the status quo and outlines the factors that will permit a deviation.  In Flowers, the parties married and had children. Id. at 112.  The couple later divorced and the children went to live with their mother (“Mother”).   Id.  Thereupon, Mother married the children’s stepfather (“Stepfather”).  Id.  Mother and Stepfather wanted to change the children’s surnames to Stepfather’s surname.  Id.  The children were about 7 years and 1 months and 5 years and 9 months old, respectively, at the time Mother and Stepfather petitioned for the name changes.  Id.  The trial court ordered the name change, and the father appealed.  Id.

The Supreme Court of Virginia reversed.  Id. at 115.  It stated its “reluctance to change the name of a child over the objection of the natural father,” and its agreement that “in the face of such objection and the absence of substantial reasons, the change should not be ordered.”  Id. at 113.  Instead, in general, a change of name will not be ordered unless:

(1) The father has abandoned the natural ties ordinarily existing between parent and child,

(2) The father has engaged in misconduct sufficient to embarrass the child in the continued use of the father’s name,

(3) The child otherwise will suffer substantial detriment by continuing to bear the father’s name, or

(4) The child is of sufficient age and discretion to make an intelligent choice and he desires that his name be changed.  Id.

Using these factors, the Supreme Court of Virginia considered the facts of the case. Father visited the children once in a while, but he had not abandoned the children.  Id. at 114.  Indeed, he provided them with regular child support.  Id.  Further, no evidence was offered of him committing embarrassing acts or the like.  Id.  The lone evidence offered that the children would suffer from continuing to bear Father’s name occurred when the children thought their surname was changed to Stepfather’s surname upon Mother’s remarriage.  Id. at 113-114.  The Court stated that such confusion was a mere inconvenience and typical of the behavior of a child of divorced parents.  Id. at 114.  With no “substantial reason” to change the children’s name over Father’s objection, the Court held that the trial court erred in permitting the change and reversed its decision.  Id. at 115.

Since Flowers, there have been but two appellate court cases that address the scope and meaning of the Flowers factors.  In May v. Grandy, 528 S.E.2d 105 (Va. 2000), a married couple had a child (“Child”), who adopted her father’s (“Father”) surname.  Id. at 106.  Later, the couple divorced and Child went to live with her mother (“Mother”).  Id. at 107-108 (Koontz, J., dissenting).  Mother later remarried.  Id.  Mother, per Child’s wishes, desired to change Child’s surname to her stepfather’s surname.  Id. at 106.  Child had been using Father’s surname for about 12 years at the time Mother petitioned the trial court for the change.  Id.  Nevertheless, Child had been asking to have her surname changed for the past four years.  Id.  Further, Father had not seen or spoken with Child for 2 1/2 years due to “job schedule and traveling.”  Id.  The trial court granted the name change, and Father appealed.  Id. 

The Supreme Court of Virginia affirmed the trial court’s decision.  Id. at 107.  While the court did not find that Father abandoned Child, it did hold that the trial court was entitled to place great weight upon Father’s general absence from Child’s life.  Id.  Further, it noted that the trial court considered Child’s desire for the name change given her age and level of maturity.  Id.  Hence, the Court’s decision implied that a petitioner need not prove literal abandonment of the child.  Instead, proof of a failure to foster a meaningful relationship with a child should suffice.

In Spero v. Heath, 593 S.E.2d 239 (Va. 2004), the Supreme Court of Virginia considered the “embarrassment” factor.  In that case, the father-petitioner offered evidence that the mother-objector “had been convicted of ‘driving under the influence of alcohol within one year’ of the child’s birth.”  Id.at 240.  The Court held that this conviction “did not rise to the level of misconduct sufficient to embarrass the child in the continued use of the parent’s surname.”  Id. at 241.  Hence, the Court implied that a crime that is malum prohibitum rather than malum in se is an insufficient ground to permit a name change over an objection.

The Frederick Circuit Court reached a similar conclusion years before in the case of In re Change of Name of Stickel, 11 Va. Cir 42 (1986) (Frederick County).[1]  In that case, the mother-petitioner offered evidence that the father-objector used alcohol and marijuana on a “rather frequent basis,” and had done so in the presence of the child.  Id. at 43.  Further, she offered evidence that he had been put in jail for a week, Id., due to traffic violations.  Id. at 44.  The Court held that these facts were “too insubstantial to warrant [a change of name]” and that his traffic crimes “involved no moral turpitude.”  Id.  Of note, the Court chalked up the father’s behavior to the wildness of youth, and reasoned that he had otherwise been an excellent father despite problems with the mother. Id.  

Despite the dearth of Flowers factors cases, various appellate courts have held that Flowers is not limited to the scenario where the father challenges the petition of his ex-wife.  Instead, Flowers creates a presumption in favor of the status quo, whatever that might be.  For example, in Beyah v. Shelton, 344 S.E.2d 909 (Va. 1986), a mother petitioned to change the child’s surname, which had been her father’s since birth despite the fact that mother and father never married, to her stepfather’s surname.  Id. at 910.  The trial court granted the name change, Id., despite none of the Flowers factors being met.  Id.  at 911.  The Supreme Court of Virginia reversed.  Id.  It held that Flowers controlled despite the distinguishing fact that the parties had never married.  Id.  Such a distinction was one of form and not of substance.  Hence, the case was almost indistinguishable from Flowers. Id.  

The Court held likewise in Rowland v. Shurbutt, 525 S.E.2d 917 (Va. 2000).  In that case, a child born out of wedlock was given the surname of her mother’s husband at the time, who was not the child’s father.  Id. at 918.  Indeed, the mother and father of the child had never married.  Id.  After the mother divorced her then husband, the father petitioned to change the child’s surname to his surname.  Id.  The trial court granted the name change, Id., despite none of the Flowers factors being met.  Id. at 919.  The Supreme Court of Virginia reversed without so much of a mention of the distinguishing fact that the father was the petitioner in the case.  Id.  Instead, the Court used the Flowers factors to reverse.  Id.  Hence, as Justice Koontz argued in dissent, the Court erased, without mention, the central thrust of Flowers that it is in the best interests of the child to have his or her father’s surname.  Id. at 920 (Koontz, J., dissenting).

The Court in Spero v. Heath, 593 S.E.2d 239 (Va. 2004), followed through on the implication in Rowland that Flowers creates a presumption in favor of the status quo and not a presumption in favor of the father.  In that case, the mother, when pregnant, told the father that he was not the child’s father.  Id. at 240.  Hence, the child was born with her mother’s surname.  Id.  Later, the father was able to prove his parentage through DNA testing.  Id.  He thereupon petitioned the court to change his child’s surname to his surname.  Id.  The trial court granted the name change, Id., despite none of the Flowers factors being met.  Id. at 241.  The Supreme Court of Virginia reversed. Id.  It held that despite the use of gender specific language in its prior cases (e.g., Flowers), nothing in the language of Va. Code Ann.  § 8.01-217 suggests a presumption in favor of the father’s surname or that the mother should have the burden of proof for or against a name change.  Id. at 240.  Thus, the Court presumed that the status quo was in the child’s best interests and reversed the trial court’s decision using the Flowers factors.  Id. at 241.

One notable exception is the Virginia Circuit Court case In re Change of Name of J.R.O., 27 Va. Cir. 260 (1992) (Loudoun County).[2]  In that case, a child (“Child”) born out of wedlock was given the surname of his mother (“Mother”).  Id.  Indeed, the parties were separated at the time of Child’s birth.  Id.  Later, Mother married another man (“Stepfather”), with whom she had another child.  Id.  She then petitioned the Loudoun Circuit Court to change Child’s surname to that of Stepfather’s surname.  Id.  Child’s natural father (“Father”), however, objected to the name change. Id.  The Circuit Court ordered the name change because it was in the best interest of Child.  Id. at 262.  More important, it did not use the Flowers factors in protecting the status quo.  Id. at 262.  The Court held this case distinguishable from Flowers and its progeny because Child shared a surname with Mother, the petitioner, and not with Father, the objector.  Id.  Indeed, the Court held that “there is no indication that the maintenance of [Child’s] birth name will affect his relationship with his father.”  Id.  In essence, the Court held that there was nothing for Father to object over and therefore he could not reap the benefit of the Flowers factors.  Hence, the Court considered what was in Child’s best interest unencumbered by a presumption in favor of the status quo.  Id.

The cases above lead to the following rule of law: a name will not be changed over a parent’s objection unless the petitioning parent proves one of the following:

(1) That the objecting parent has not fostered the parent-child relationship;

(2) That the objecting parent has engaged in bad behavior sufficient to embarrass the child;

(3) That the child will suffer substantial harm in not using the petitioning parent’s surname; or

(4) That the child is of sufficient age and intelligence to change his/her name and desires the change.

Note, however, under the Loudoun Circuit Court’s logic in In re Change of Name of J.R.O., 27 Va. Cir. 260 (1992) (Loudoun County), the objecting parent must be objecting to a change from his or her surname for this rule to control.  Otherwise, the petitioner need just prove that the change is in the child’s best interests.

Though the outer limits of these factors are unclear, Jane’s case for a name change over John’s objection will be stronger to the extent its facts are similar to those in May v. Grundy and dissimilar to those in Flowers v. Cain or In re Change of Name Stickel.  That is, Jane has a greater likelihood of success if John has made, in essence, little to no effort to be a father to Jack.  If John has not fostered a meaningful relationship with Jack in the past 2 1/2 years or more, then Jane should be successful in getting Jack’s last name changed to Smith.  In addition, Jane has a greater likelihood of success if John has engaged in substantial bad behavior sufficient to embarrass Jack.  A one-week jail term for parking traffic offenses might be insufficient.  A more substantial jail term for a crime malum in se might suffice.  Moreover, recreational drug use in the child’s presence might also be insufficient, especially if there is no evidence that the child was harmed through such use.  Further, Jack’s input could be determinative.  If Jack is a teenager, his desire for a name change should be a sufficient ground for permitting the change.  If Jack is younger, his desire for a name change will have to be coupled with another Flowers factor for a court to order the change.

– Nicholas Jon Solan is a founding partner of Solan Alzamora, PLLC in Fairfax, Virginia.  He specializes in family law matters throughout Northern Virginia, including divorce, custody, support and equitable distribution matters.  He can be reached at (703) 359-0088 or nsolan@SAlawfirm.com or www.SAlawfirm.com.

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