How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Michael Your Own Question

Michael
Michael, Legal Consultant
Category: Family Law
Satisfied Customers: 456
Experience:  Expert witness in Federal court, won cases at State lower & appellate levels.
8166611
Type Your Family Law Question Here...
Michael is online now
A new question is answered every 9 seconds

I am at the end of a nasty divorce. I have two children ...

Resolved Question:

I am at the end of a nasty divorce. I have two children that has been abused by their father. He was convicted of rape of a child in 1989. My fiance and I wish to get married but my youngest son does not understand that just because my name changes does not mean his does. He wants to take on my fiance''s name (both children do). Is there any way I can get their names changed without denying paternity or parental rights to the absent parent?
Submitted: 6 years ago.
Category: Family Law
Expert:  Michael replied 6 years ago.

HelloCustomer

You can petition the family court to change the children's last names.

As you probably already know, once the papers are filed with the court you are required to serve a copy of the papers on the biological father - even if he is currently incarcerated. He will have the opportunity to reply to your request in writing or by making a court appearance. (The jail/prison would arrange transportation, etc. if it were necessary for him to appear in court. His attorney would help him with these arrangements.)

Ultimately it is up to the judge to decide whether he will permit the children's' names to be changed or not. He is going to consider what is in the best interests of the children. Unfortunately, unless a child is around 12 or 13 years old the judge will often not even listen to the child's wishes as it is believe that a child younger than this cannot know with any certainty whatsoever what is in his/her best interests. Even a child of 12 or 13 can be heard by the judge, but most judges will give the child's words very little weight.

What the judge will consider are your reasons for wanting the names changed, your ex-husband's reasons for opposing them, his past, current, and potential future relationship with the children, along with his behavior/character, etc.

It is very difficult to predict what the judge will do given that the rape occurred almost 20 years ago. Much will depend on everything your ex-husband has done since including his behavior while incarcerated, if he has been released what he has done since, his visitation with the children since the divorce, and evidence of his relationship/abuse of the children while you were married, etc.

Ultimately the judge would have to decide that despite your ex-husband's protests, it would be in the children's best interests to have a new last name. Some of the reasons a judge might choose this is if the father had very little contact with the children, was of "bad" character (i.e., has recently been convicted of other crimes, abuses drugs, etc.), the children's knowledge of their father and his past and current behavior, etc.

Also, after you are married you might want to consider seeing if your new husband wants to adopt the two children. This will often result in the court terminating your ex-husband's parental rights. Doing this would allow you and your new husband to change the children's last names. However, even if the judge permits adoption he will not allow termination of parental rights if he sees that your ex-husband is involved with the children emotionally, visits them as often as allowed by the courts, etc. If he chooses not to visit them and is not involved with them then a judge will often terminate parental rights along with an adoption regardless of the parent's wishes. (Actions speak louder than words - so opposing termination if he has deliberately declined opportunities to see the children, speak to them, etc. would suggest to the judge that the protest is out of spite and not due to any desire by the father to be involved with his children.)

In the end, there is no harm in petitioning the family court, making your best arguments before a judge, and letting the judge decide. If the judge will not allow the name change then at least you tried. If your husband cannot got his act together enough to even show-up in court when he is supposed to, you can potentially win if he defaults.

Please let me know if you have any questions about this.

Good luck,

Michael

Michael, Legal Consultant
Category: Family Law
Satisfied Customers: 456
Experience: Expert witness in Federal court, won cases at State lower & appellate levels.
Michael and 2 other Family Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
< Last | Next >
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    8085
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney and Counselor at Law

    Satisfied Customers:

    6424
    27+ years legal experience. I remain current in Family Law through regular continuing education.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Lawyer

    Satisfied Customers:

    6336
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    5987
    I provide family and divorce law advice to my clients in my firm.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    5773
    JD, 15 years legal experience including family law
  • http://ww2.justanswer.com/uploads/BrianTMayer/2010-01-06_200119_BM.jpg Brandon M.'s Avatar

    Brandon M.

    Family Law Attorney

    Satisfied Customers:

    3810
    Attorney experienced in all aspects of family law
  • http://ww2.justanswer.com/uploads/TU/TUSA/2012-6-6_55219_test.64x64.png Thoreau (T-USA)'s Avatar

    Thoreau (T-USA)

    Lawyer

    Satisfied Customers:

    2634
    Attorney