How do I change my child’s surname?

Macleod & MacCallum’s family law solicitors / divorce lawyers are regularly asked about mother’s rights and father’s rights.  In particular we are often asked whether a client can change their  child’s surname following separation.

 How do I change my child’s surname?

The answer to this question again depends on whether or not your ex-partner has parental rights and responsibilities.

Mothers automatically have parental rights and responsibilities in respect of their children. Unmarried fathers will have parental rights and responsibilities in respect of their child if they are named on the child’s Birth Certificate and if the child was born after May 2006, when the Law in relation to parental rights and responsibilities changed. If the child was born before May 2006 the unmarried father will not automatically have parental rights and responsibilities irrespective of having his name on the child’s Birth Certificate. A married father who is named on the child’s Birth Certificate will have automatic parental rights and responsibilities, for children who are born before or after May 2006.

If your ex-partner does have parental rights and responsibilities you cannot formally change your son or daughter’s name on their Birth Certificate without the written consent of your ex-partner. If your ex-partner will not provide their consent your only alternative would be to raise Court proceedings, seeking a Specific Issue Order in respect of the child’s change of name. Before raising Court proceedings we would always urge a client to consider the impact of a name change on their son or daughter, given their age and how long they have been using the name on their Birth Certificate. The test which the Court would apply in deciding whether or not to grant the Order for the change of the child’s name would be what was in the child’s best interests. Generally speaking, it can be difficult to persuade a Court that changing a child’s name can be directly beneficial to a child. The individual circumstances of the case would be examined closely by the Sheriff.It is important to bear in mind the cost of Court proceedings, as that is likely to be prohibitive to most parents. In our experience the Scottish Legal Aid Board, given their limited resources, are unlikely to fund such a Court action.

Whilst it may not be possible for you to formally change your child’s name on his or her Birth Certificate, it may be possible for you to enrol your son or daughter in school or at their General Practitioner’s using the same surname as you. Different schools and different doctors’ surgeries have varying policies.

If you would like any further information or advice in relation to family law please contact a member of Macleod & MacCallum’s award winning Family Law team.

Jenna Thomson

Jenna Thomson
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November 17, 2014