When a couple marries, one spouse frequently takes the name of the other spouse. If they have children, the children typically take the family name as their own. That name is then retained following a divorce. But divorces can be emotional and contentious affairs, with issues that run deep and last for a long time. So, what happens if one parent wants to change a child’s last name?
When is consent required?
North Carolina Statute Section 101-2 controls when name changes can occur and how the change is accomplished. With respect to changing the name of a minor child, consent is typically required by both parents, even after they are divorced. If one parent is awarded neither physical nor legal custody of the child, their consent is still generally required to change the child’s name.
There are, however, exceptions to the consent rule. If they have reached the age of 16 years, the child may file for a name change themselves, with only the consent of the parent who has custody, if the clerk of the court is satisfied that the non-custodial parent has abandoned the child. Similarly, the custodial parent may file for the child’s name change if the non-custodial parent has abandoned the child. When it’s the custodial parent who files, the age of the child is irrelevant.
Whether a parent has abandoned the child is a question of fact. If a court has previously made a finding of abandonment, this will suffice. If they have not, the clerk of the court must attempt to contact the parent or the custodial parent must present evidence to support their contention that the non-custodial parent has abandoned the child.
Finally, there are a number of offenses which, if the non-custodial parent has been convicted of them, their consent is not required. These include child abuse, incest and other sexual assault crimes. But convictions for assault or other crimes of violence unrelated to the child, or children in general, may also be grounds to waive the non-custodial parent’s consent.