Legal Memorandum: Appropriateness of changing a child’s surname from that of a biological father’s surname

Issue: Under Illinois law, when will a court determine that a request to change a child’s name to a surname other than the surname of his biological father is appropriate?

In the Anglo-American legal tradition, a child will presumptively bear his or her father’s surname, so long as the father has not abandoned the child. In re Marriage of Presson, 102 Ill.2d 303, 312 (1984); In re Mattson, 240 Ill.App.3d 993, 997 (1993); Dattilo v. Groth, 222 Ill.App.3d 467, 469 (1991); see also In re Marriage of Omelson, 112 Ill.App.3d 725, 730 (1983) (noting the tradition of using paternal surnames since at least the Norman Conquest) (citing In re Marriage of Schiffman, 28 Cal.3d 640, 646 (1980)).

As our supreme court has stated, a noncustodial parent is "necessarily ***at a disadvantage in maintaining a strong relationship with the child," and the maintenance of the noncustodial parent’s name "goes far toward demonstrating his continuing interest in and identity with the child." In re Marriage of Presson, 102 Ill.2d at 312; see also In re Mattson, 240 Ill.App.3d at 997 (holding that, since the father did not have physical custody of his child, "the common name [was] one of the few bonds he [was] able to maintain with her"). See also In re Marriage of Schiffman, 28 Cal.3d at 646 ("identification with the paternal surname may give the child a healthy sense of family as well as ethnic and religious identity and also maintain her or his rightful link with an absent or noncustodial father").

In re Custody of Cooper H, No. 2-15-0916 2016.IL.0000226 (Ill. Ct. App. Feb. 8, 2016) (VersusLaw).

Date: March […]