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Naming the Child

State laws on choosing children's surnames vary substantially. Some states allow the mother to choose any surname; others allow any surname except that of a putative but unacknowledged father; some require that the child be given the surname of a legal recognized relative. The highest federal court to consider this issue found that the parents' privacy interest did not supersede the state's interest in having children named for a legal parent. This case arose in Nebraska, which requires that a child be named for a legal relative. Two mothers challenged the law. One wanted to give her baby the surname of its father, which was different from her husband. The other mother just liked the name McKenzie and wanted to use it for her child's surname.[118]

Lower courts in two states had found a constitutional right to give children any desired name. This decision was based on the parents' right of privacy. The appeals court considering the Nebraska case agreed that the parents had a privacy right in naming their children, but it found that the state's right to orderly record-keeping procedures and certainty of parentage outweighed the parent's privacy interest. Since the U.S. Supreme Court refused to review this case, it can be assumed that the state may restrict the allowable names for a child.

The name on the birth certificate does not establish the child's paternity. It may be evidence of paternity if the named father agreed to the use of his name, but it does not affect the state's legal procedures for establishing paternity. (See Chapter 24.) State restrictions on choosing names on a child's birth certificate do not prevent the parents or the child from petitioning the court for a name change after the birth certificate proceeding.

[118]Henne v. Wright. 904 F 2d 1208 (CTA 8 1990).


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