In Georgia, there are two ways a father can legally change his child’s last name. The first method is specific to fathers seeking to legally establish their parental relationship. The second method necessitates an agreement between the child’s mother and father.
Under Georgia law, in order for a father of a child born out of wedlock to establish his parental rights and seek to change the child’s last name he must file a petition in the superior court of the county of the residence of the child’s mother (or other party having legal custody or guardianship of the child). O.C.G.A. § 19-7-22(a).
The petition must set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. O.C.G.A. § 19-7-22(b).
The court, after considering the relevant evidence in a hearing, may then pass an order declaring, among other things, that the father’s relationship with the child is legitimate, and specifying the name by which the child shall be known. O.C.G.A. § 19-7-22(c).
Whether the child’s last name shall be changed is within the discretion of the trial court; the standard being whether or not the change of the child’s name is in his or her best interests. Carden v. Warren, 269 Ga. App. 275; 603 S.E.2d 769 (2004), citing Palmer v. Pinkston, 228 Ga. App. 514, 516(3) (1997).
Other than the using statutory method discussed above, the only other avenue for a father to change the child’s last name requires the written consent of the child’s mother.
To initiate this request the parent may present a petition to the superior court of the county of the child’s residence, setting forth fully and particularly the reasons why the change is asked. O.C.G.A. § 19-12-1(a).
This same statute, which applies equally to the mother and father, sets forth the following requirements when seeking to change a child’s last name:
“If the petition seeks to change the name of a minor child, the written consent of his parent or parents if they are living and have not abandoned the child, or the written consent of the child’s guardian if both parents are dead or have abandoned the child, shall be filed with the petition, except that the written consent of a parent shall not be required if the parent has not contributed to the support of the child for a continuous period of five years or more immediately preceding the filing of the petition.” O.C.G.A. § 19-12-1(c).
In Georgia, if either parent objects to the request to change the child’s name file under this statute, then the court is not authorized to change the child’s name. See Brown v. Waters, 208 Ga. App. 866 (1993) (the Court of Appeals held that trial court erred in granting a petition to change a child’s name when an incarcerated father raised objections).
This is a potentially harsh result in some instances, but remains the law in Georgia. As stated by Judge Ray in his concurring opinion in the case of Brittingham v. Datillio, A12A1374 (Ga. Ct. App. 2012), “[o]ne can think of many instances where the non-moving parent might unreasonably withhold consent, even when the best interest of the child suggests a name change should occur. One such example might be when a father has been convicted of a crime against his child and the mother then wishes to seek a name change to remove the father’s name from that of the child. Under O.C.G.A § 19-12-1(c), both parents would have to agree to the change for the trial court to have authority to make it, no matter what the best interest of the child might be in that regard.”
Until this law is changed, the consent of both parents is required in order to legally change a minor child’s last name. As discussed above, however, the consent of the other parent may not be required if that parent has failed to contribute support to the child for a period of five continuous years.
If you are the father of a child born out of wedlock in Georgia and you desire to change your child’s last name, you can request the change when you file your petition for legitimation under O.C.G.A. § 19-7-22.
In any other instances when you seek to change your child’s last name, you will first need to obtain the written consent of the child’s mother to do so (as required by O.C.G.A. § 19-12-1).