LEGAL GUIDE
Written by attorney Tracey Ann Bloodsaw | May 19, 2010

Legal Name Change for Minor in New York

There are several cases where the mother discovers that the father of her child is not the father she thought and wants to change his name to either hers, or that of the biological father. In New York, several steps may be required. Typically a child who has the father's last name has acquired it when the father signed the Acknowledgement of Paternity soon after the child was born, particularly where the parties were not married. If this were the case then taking on either the mother's name or the actual father's name may require several steps in court, because the "noticed" father can object to any change.

First off, a child's first name may be corrected or added to the birth certificate in Family Court, usually with very little confusion. However, changing a child's last name is entirely different and must be done in either Family Court, Supreme Court or Civil Court depending on the circumstances. For our purposes, where paternity needs to be established (or re-established),Family Court is the proper venue. The mother can do it one of two ways:

1) She can file a petition requesting that the Acknowledgement of Paternity be vacated based on the fact that the

father is not the actual father, or;

2) She or the biological father, can file a Paternity petition.

In Scenario #1, the Court granting the mother's request for vacating the Acknowledgement of Paternity does not automatically establish the real father as the father for any purpose. At this point, legally, there is no father that the Courts will acknowledge until there is someone that can be identified and brought to court. Thus, a Paternity petition must be filed by either party to obtain an Order of Filiation, which establishes the father as the "legal" father, from the Court. This is the legal document that is required by the Department of Health and Mental Hygiene ("DHMH") to issue a new birth certificate with the new name on it, that of the father's.

In Scenario #2, if the either parent files a petition for Paternity, then the the father can either consent to paternity or, if he does not, the court can order DNA to confirm that he is actually the father. Again, once this occurs then the Court will issue an Order of filiation, which is provided to the DHMH for the issuance of a new birth certificate.

Of course, Scenario #2 is preferred since it speeds up the process. However, it is a rare case where the biological would be so willing to cooperate in such proceedings, since doing so would also result in an order for child support against him. Vacating an Acknowledgement of Paternity where there is currently a child support order against the first father is a long shot unless the Court can identify the actual father so that the child is not left with no one to support him or her.

Another alternative, although the process can be delayed by the father's objection, is that the mother legally change her name, in Supreme or Civil Court, which permits her to change her child's name to the same last name.

Why would a man want to establish paternity, as opposed to just allowing the birth certificate to remain unchanged. There are several reasons, although a father whose name is on the child's birth certificate is considered the "notice" father, his rights with regards to adoption, termination of parental rights and abuse/neglect matters in Family Court are limited until paternity is in fact established. A father who has established paternity and is the "legal" father, on the other hand, has no limits with regards to his rights in any case in any court.

In any circumstance, it is best to ascertain the real and actual father as soon as possible, after the child's birth, so as to limit any other legal issues that may arise, i.e. equitable estoppel. The reality is the laws are designed to keep the "legal" father in that capacity for public policy reasons.

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