Assume that a child is born to unmarried parents. The child’s surname at birth is her mother’s maiden name. The child’s mother later gets married to another man and she takes on his surname. The child’s surname remains unchanged. So, moving forward, the father has one surname, the mother has another surname, and the child has another surname as well. Should the father, who is the primary physical custodian of the child, be able to change the child’s surname to his surname so that the child’s surname matches at least one of her parent’s? Doesn’t my old blog post at least intimate that there is some argument that the name change can be granted despite not meeting any of the Flowers factors?
In McMahon v. Wirick, Record No. 131910 (Virginia Ct. App. 2014), the trial court held that the father could not change his daughter’s surname under this scenario because: (i) it did not fall under the Flowers factors, and (ii) even if the Flowers factors were not applicable in this case, it was not otherwise in the best interests of the child as required under Va. Code § 8.01-217. The father appealed claiming that: (i) the Flowers factors never should have applied in this case because the child does not share a surname with either parent, and (ii) it was in the best interests of the child as required under Va. Code § 8.01-217.
The Virginia Court of Appeals upheld the trial court’s decision. It basically says that it never treated the Flowers factors as a test for whether a name change was warranted (which is false), then says that the Flowers factors were a non-exhaustive list of substantial reasons in favor of a name change in the child’s best interest (which is a clever refashioning of the truth), and then holds that the trial court was correct to rely upon the Flowers factors in making its decision despite the fact that said factors clearly only apply to situations where the child already has one parent’s surname. In other words, the court held that the Flowers factors were non-exhaustive, which makes some sense, and then treats those factors as if they were actually exhaustive, which is rather odd.
Thankfully, the dissent points these obvious things out. Unfortunately, the father had no chance when the appellate court decided to use the factors. Being unable to put on strong evidence of harm that his daughter suffered from using her surname, the father was only able to put on evidence about the inconvenience that he suffered from the confusion, which was never going to be good enough under Flowers.
 The Flowers factors, as restated in Spero v. Heath, 267 Va. 477 (2004):
(1) The parent sharing his or her surname with the minor has abandoned the natural ties ordinarily existing between parent and child,
(2) The parent sharing his or her surname with the minor has engaged in misconduct sufficient to embarrass the child in the continued use of the father’s name,
(3) The minor otherwise will suffer substantial detriment by continuing to bear the father’s name, or
(4) The minor is of sufficient age and discretion to make an intelligent choice and he desires that his name be changed.