What’s In a Name? That Which We Call Children Born Out-of-Wedlock Is Not So Sweet.

July 28, 2017

For parents-to-be, choosing what to name your baby is a monumental decision, often accompanied by bickering and bargaining about each parent’s favorite choices. In fact, there is an entire industry dedicated to creating and categorizing lists of baby names and their meanings. For those who follow baby name trends, BabyCenter recently released a list of baby names that are endangered and plunging in popularity. That list can be found here: https://www.babycenter.com/endangered-names.  Unsurprisingly, names like Blanche, Myrtle and Rudolph are next on the chopping block. Surprisingly, the “unique” name I recently chose for my newborn daughter ranked in the Top 100 in popularity (#85 – Piper), rendering it not quite as unique as I thought. Ironically, the name my husband wanted for our son a couple years ago, which I quickly vetoed, is also ranked #85 on the list of popular boy names (#85 – Maverick).

It can be hard enough for a married couple to agree upon a baby name. Imagine the added difficulty for an unmarried couple having a child together, especially if the couple is no longer a couple. For children born out of wedlock, who gets the right to name the child if the parents cannot agree?  Whose last name is used?

Although Wisconsin law is silent on the initial selection of a child’s name, the practical reality is that the mother of the child has the exclusive opportunity to decide the child’s name at birth. Shortly after birth, hospital staff presents the mother with a birth certificate worksheet to fill out, in which the mother inserts the child’s chosen first, middle and last name. This form is then submitted to the Department of Vital Records and used to create the child’s birth certificate and to apply for a Social Security card. Notably, the father’s signature is not required on this form. If the father is unhappy with the selection of the child’s name, he would have to file a name change lawsuit in court and petition the court to change the child’s name. A hearing would be held, and the child’s mother would also have the right to testify. There is no guarantee for the father that the court would agree to the name change.

Alternatively, the child’s name change can be accomplished through a paternity lawsuit, but only to a certain degree. A paternity lawsuit is necessary if: (1) there is a dispute or uncertainty about the identity of the child’s father; (2) the mother is married to someone besides the father when the child is conceived; or (3) the parents agree on the identity of the child’s father but disagree about the legal custody, physical placement or child support of the child. So it’s very likely in a non-marital situation that the parents will already have a paternity lawsuit pending in which the father can voice his objection to the child’s chosen last name.

If the mother agrees to change the child’s first, middle, or last name, then the court in the paternity lawsuit can easily incorporate that change into the court’s judgment of paternity. Unfortunately for the father, if the mother will not agree to change the child’s first or middle name, there’s nothing the paternity court can do about it. The father would have to initiate that separate name change lawsuit described above.

On the other hand, the paternity court can change the child’s last name if requested by the father (and objected to by the mother), but only to hyphenate the parents’ last names together. Wisconsin law does not permit the court in a paternity lawsuit to replace the child’s last name with a new last name entirely, unless both parents agree. Furthermore, Wisconsin law does not dictate which parent’s name goes before or after the hyphen. That is left to the discretion of the court.

Even to hyphenate the child’s last name, the court has to first determine that the name change is in the child’s best interest. In my experience, courts will usually always hyphenate if requested by the father. But I suppose a court might not find a hyphenated name change to be in the child’s best interest if, for example, the mother’s last name is Roly and the father’s last name is Poly.

The moral of the story is that an unwed father should think twice before spending a lot of time researching creative baby names if the child’s mother has no intention of filling out the paperwork that way. A better use of the father’s time would be in selecting a competent attorney to initiate the paternity or name change lawsuit, if selection of the child’s name is so critically important to the father. But as Shakespeare wrote, “that which we call a rose by any other name would smell as sweet.”

For more information about "What’s In a Name? That Which We Call Children Born Out-of-Wedlock Is Not So Sweet.," contact Kathryn M. Grigg at kgrigg@axley.com or 608.283.6703.