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Surname of an Unmarried Couple’s Child in Arizona

Posted on : February 14, 2017, By:  Christopher Hildebrand
Surname of an Unmarried Couples Child in Arizona

Can a Mother Change the Last Name of a Child Born During Marriage

For many years, it was the tradition for a child born to a married couple to take the surname of the father. Did this tradition give the father a protectable paternity right in Arizona? In Laks v. Laks, 540 P.2d 1277 (Ariz. Ct. App. 1975) the Arizona Court of Appeals discussed this issue.

Facts of the Case

Ms. Eliot and Mr. Laks married and had three children. When they divorced, Ms. Eliot changed the surname of the children to “Eliot-Laks.” Mr. Laks asked for an injunction preventing this. The court granted the injunction and ordered that Ms. Eliot had to use the last name of Laks for the children. Ms. Eliot appealed.

Surname of an Unmarried Couples Child in Arizona.

Surname of an Unmarried Couples Child in Arizona.

 

Henry’s Standing to Bring Injunction

Does Mr. Loks have the standing to enjoin the use of a different name? The interest of the father in having his child bear his surname has been described as one of “inherent concern.” It has also been called a “time-honored” right. But the interest of the father is not a property interest entitled to constitutional protection. It is merely a custom that children bear the names of their parents.

However, courts have recognized that the father has a protectable interest in having his child take the parental surname. When a mother gets custody of the children, the bond between the father and his children may weaken if their name is changed. Therefore, a rule was developed that courts won’t authorize a name change against the father’s objection. Where the children’s substantial interests require a change of name, the change may be permitted.

Equal Protection

Ms. Eliot argues that she has an absolute right, same with that of the Father, to give the children her surname. She claims that the court ruling constitutes a classification based on sex contrary to the Equal Protection Clause of the United States Constitution.

No reported cases involve a situation where the mother adds her maiden name to the given surname. Ms. Eliot claims that the custom of using the father’s name was a result of the subservience of women in society.

Elimination of the inequality between the sexes gives women an interest equal to that of men. Therefore, she argues, the name “Eliot-Laks” is an appropriate recognition of the sake of both parents in a child’s name.

The Court of Appeals court found merit in this contention. However, it noted that this case involves not the initial naming but a change of name. The persons who have the paramount interest are the children, and their best interests are controlling. They were not called as witnesses in the case.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
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After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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22:09 12 Sep 13

Burden of Proof

Mr. Loks made a prima facie case for injunctive relief. He did so by showing that the name “Eliot-Laks” was not the name on the children’s birth certificates. That left the burden on Ms. Eliot to show that the name change was in the best interests of the children. Ms. Eliot did not file the reporter’s transcript of testimony in this appeal. Therefore, the Court of Appeals presumed the evidence showed that the name change was not in the best interest of the children.

Disposition

The Court of Appeals affirmed the ruling below.



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