Can I Change My Child’s Name After Separation?

To cover a range of scenarios when answering the question, ‘Can I change my child’s name?” the law requires us to discover the following:

• Whose desire is it to change the child’s name?
• Will you need consent from the other parent to change your child’s name?
• Do you have sole or shared parental responsibility for the child?

In addition to exploring these considerations, as family lawyers who assist parents with issues like these, we also need to consider the specific circumstances around the request, which will be explained below.

Who Wants The Name Change? 

We find that it is generally more common for the desire to originate with the child. Otherwise, another common motivation is when a parent, with sole responsibility of a child, does not have the same surname as their child. 

In our experience, we have found that if a name change is desired by your child, the outcome is more likely to be successful. This is because the Courts always strive to keep your child’s best interests in focus. 

We know that there are a multitude of reasons that your child may have a desire to change their first or last name. 

Common reasons include:

• There are negative connotations or feelings associated with the name; 
• The child is being bullied for their connection to the specific name or surname;
• The child may not connect to the name due to a change in identity (gender fluidity, gender change and/or sexuality);
• A desire to disassociate with a particular parent due to a lack of connection; or 
• Domestic or family violence. 

After a separation or divorce, it is important to note that decisions made by the Court and requirements for consent will differ depending on whether a parent has sole responsibility of the child, or if there is shared responsibility. 

Can I Change My Child’s Last Name Without Their Father’s / Mother’s Consent?

This depends on whether you have what’s known as ‘sole parental responsibility’ or ‘shared parental responsibility’. 

Parents With Sole Parental Responsibility

If you are legally recognised to have sole parental responsibility, depending on the specific terms of the order granting that sole responsibility, the law says that there is no need to consult the other parent when changing a child’s name.

However, certain states in Australia require a Court order when registering a change of name for a child. 

For this reason, it is crucial that you get early legal advice about how to navigate your child’s change of name, and be aware of what action is required.

Parents With Shared Parental Responsibility

If you share parental responsibility, and there is no consent from one parent, then there is the option to either wait until the child turns eighteen, or alternatively, engage in pre-action (pre-Court) procedures like mediation, before filing an application with the Court to change their name.

Mediation is the process of aiming to reach an agreement, without the cost and delay that comes with having a court decide the issue. 

Conflict between parents is not in the best interests of the child. This is why it can be extremely beneficial to first try to have an informal discussion with the other parent of your child, to see if consent for a name change can be obtained. This might mean compromising and giving the child a hyphenated name, which is common in the case where both parents are actively involved in the child’s life, from a young age. 

Given that personalities and relationships are different in every situation, we assist our clients by learning about the dynamics that exist and the drivers for the name change to help plan the best way to approach these types of conversations. If the other parent will not consent or effectively participate in mediation, then Court may be the next avenue.

Going To Court: What The Court Considers

If you and the other parent cannot agree and you want to take the next step for the Court to make a decision, there are a number of considerations that will be taken into account, before determining whether the name change will occur.

Some of the factors that the Court takes into account are: 

• The age of the child;
• The wishes of the child;
• If there is any embarrassment likely to be experienced by the child if their name is changed (or not changed);
• If there will be any confusion of identity, that arises for the child if his or name is changed;
• The effect any change in the child’s name may have on the relationship the child has with either parent; 
• The degree of identification the child has with either parent; and
• The effect of frequent or random changes in the child’s name.

In the event you and the other parent cannot agree and you decide to proceed to Court, it may be considered a discrete issue, meaning it may be dealt with by way of a short hearing on that issue alone.

However, in the event this application has been made and there are other outstanding parenting or other issues already subject of the Court process, then the application for the name change may be dealt with at the final hearing, along with the other disputed issues. 

Avoiding Long and Drawn Out Processes for You and Your Child

So, as you can understand, the answer to the question ‘Can I change my child’s name?’ is not usually straightforward. Approaching the other parent for consent is often the pivotal step, particularly where there has historically been conflict or if you are confident that this request will not be met with a reasonable degree of consideration.

Every case is different, and this is why it is crucial to seek early legal advice, if only once, to help you through this process and assess the pros and cons of pursuing a name change if not agreed. If consent isn’t given, then approaching a mediation with your lawyer assisting you, will go a long way in helping you avoid the toll that Court can take, on both you and your child.