Can my baby have my same-sex partner's last name once the baby is born?

I'm in a domestic partnership same-sex partner but pregnant from an ex bf. The father doesn't want to be involved. Can I give my baby my partners last name once the baby is born? Will it be an issue? Do I have to put the father's name on the birth certificate?

Morgan Hill, CA -

Attorney Answers (3)

Erin Patricia Farley

Erin Patricia Farley

Family Law Attorney - Petaluma, CA
Answered

You can name your baby whatever you want to name your baby.

David Alexander Yomtov

David Alexander Yomtov

Family Law Attorney - San Jose, CA
Answered

This is a complex question. To answer your question, I'll say that, yes, you can put any last name that you want on the birth certificate. Here's where it gets complicated:

(First of all, you don't mention if you are REGISTERED Domestic Partners. This is a very important distinction, as without registration, you are merely GFs and have none of the rights that married people have.)

You could put your faith in the parentage presumption, which says that a child born of two married folks is legally presumed to be the child of both. But the Family Code doesn't actually say that, it says a "husband" is so presumed. The RDP act says that RDPs get "all rights," but if you most to an gay-unfriendly state, your RDP's rights may not be recognized.

More importantly, the bio-dad may be disinterested in the baby now (or even ever) but he is still the baby's dad. If you want to terminate his parental relationship, you'll need to take steps. One thing that you could do would be to file for a step-parent/domestic partner adoption, which would include a relinquishment of parental rights by the bio-dad.

If your DP doesn't want to adopt, then you won't have much luck terminating bio-dad's parental relationship, because the courts want children to have two parents where possible.

The two of you should consider having a sit-down consultation with an experienced family law or adoption attorney.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to... more
John Noah Kitta

John Noah Kitta

Child Custody Lawyer - Fremont, CA
Answered

While I am not an expert in same-sex marriage issues, I would think that you would have to put natural father’s name on the birth certificate. Thereafter, you can use a different last name for your child (i.e. yours or your same-sex partners if you took her name as well). Many people go through life using hyphenated last names, or nick names, not using their real names (i.e. Hollywood, actors, etc…). In regard to the formalities of life, I could imagine that at some point you could file a Petition to terminate parental rights if father has nothing to do with the child for a year and fails to support the child, then contemporaneously, have your partner adopt the child. Once the adoption is completed, you could look into the issue of possibly amending the birth certificate.

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