When a husband and wife decide to end their marriage, the question often arises as to whether it is possible to change the child's last name after the divorce.
If the spouses had a common surname during marriage, then the baby received the same surname at birth. If the wife kept her old surname when registering the marriage, the child can be given the surname of the father, mother, or a double surname.
But after a divorce, in most cases, parents want to change the child’s last name so that it is the same as that of the parent with whom the child remains to live.
If the minor is not yet 14 years old, then the procedure for changing the child’s surname after a divorce will be complicated. In this situation, the consent of both parties is required.
The process of changing the surname of children under 18 years of age is regulated by law and requires compelling reasons and the consent of the guardianship authorities.
Changing a child's surname after divorce
If there is a need to change the surname of children, then first of all it is important to know what is needed to change the surname of a child.
If the child is not yet 14 years old, then to carry out such a process, consent from the guardianship authorities will be required . They must be contacted before submitting documents to the registry office.
The child’s consent to change his surname is also needed if he is already 10 years old.
Step-by-step instructions for changing your last name:
- Contacting the guardianship and trusteeship authorities in order to obtain permission to change the child’s surname. A mandatory condition is the application of both parents. If the father lives away from the family or for certain reasons cannot appear at the guardianship authorities, then his consent must be notarized.
- Contacting the Civil Registry Office to register a new name and obtain a certificate. Because the child’s birth certificate also needs to be changed. For this you need the following documents:
- statement;
- identification;
- child's birth certificate;
- document on marriage registration or divorce;
- documented permission from the guardianship and trusteeship authorities;
- a receipt for payment of the state fee in the amount of 1600 rubles;
- father's consent in the form of a personal statement or notarized consent.
After completing the above and submitting the necessary documents, you need to wait for the decision of the registry office. It must be issued within 1 month.
In most cases, if everything is in order with the documents and there is permission from the guardianship authorities, then the procedure will go without problems.
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The registry office changes the surname, draws up a certificate of change of surname and issues it to the parents within the prescribed period.
It is important to take into account that it is possible to change a child’s surname without the consent of the father if he was not born in an official marriage. At the same time, information about the father is included in the certificate from the words of the mother or is completely absent.
Children after 14 years of age and before reaching adulthood can change their last name if they have:
- Consent of the mother regarding the father of a minor.
- Consent of the child himself.
- Permission from the guardianship and trusteeship authorities, documented.
If the above conditions cannot be met, it is permissible to change the surname upon separation of children or in court after a divorce on the basis of a separate statement of claim.
The laws of the Russian Federation, which are also in force in 2021, provide for another option for changing a surname - deprivation of parental rights in relation to the father.
In this case, it must be proven that he is evading parental responsibilities and does not give his consent to change the surname of a minor.
This option is much more difficult and time-consuming.
In what situations is it possible to change a child’s surname without the father’s consent?
Changing a surname is a widespread procedure. The most common reason for children to change their surname is family breakdown. In the vast majority of cases, after a divorce, children remain with their mother . It is on her initiative that the child’s surname is changed without the father’s consent.
The fact of family breakdown is not a full justification for changing a child’s surname, especially since even after a divorce, the former head of the family is usually categorically against this. Here you need the consent of both parents. However, there are a number of exceptions when, after a divorce, the mother gains the right to change the child’s surname without the father’s consent.
When a father is deprived of parental rights
This happens if he tries to avoid fulfilling paternal responsibilities, child abuse, alcohol abuse and other violations (Article 69 of the RF IC).
To prove that the father is not involved in raising the child, one has to resort to the help of strangers: teachers, educators, doctors, neighbors, etc.
According to Part 2 of Art. 59 of the RF IC, this is a sufficient reason to ignore the opinion of a careless father regarding changing the children’s first and last names. This can be done without obtaining his consent.
Declared incompetent
Such a diagnosis is made in court if there is a serious mental disorder confirmed by an official medical report. (Article 29 of the Civil Code).
This fact is a good reason not to be interested in the opinion of your ex-spouse.
Partial restriction of legal capacity does not give the right to ignore the father’s opinion.
Location unknown
The consent of the ex-husband is not necessary if, according to Part 2 of Art. 59 IC it is impossible to establish his whereabouts. This applies when he:
- does not live at the registered address;
- is located in another state;
- does not maintain a relationship with the child;
- wanted for crimes;
- missing.
You should not hope that the guardianship authorities will formally take your statement that it is impossible to establish the whereabouts of your ex-pope and will take your word for it. Most likely, as evidence you will have to present a resolution from the investigative authorities to search for a former relative or an official court decision declaring him missing.
Avoids paying alimony
Art. 80 of the RF IC establishes the obligation of parents to support their minor children. Evasion of paying alimony, like all previous offenses, allows you not to ask the consent of such a father to change the personal data of his son or daughter.
To prove to the guardianship authorities the fact of non-payment of alimony, you need to demand their payment through the court, and payment must go through the bailiff service. It is the certificate from the bailiff service that will be the decisive evidence for guardianship.
According to judicial practice, the period of non-payment must be at least two months after the opening of the writ of execution; to be recognized as a willful defaulter - 6 months.
Parents' marriage was not registered
In this case, you just need to contact the guardianship authorities (Part 3 of Article 59 of the Criminal Code).
A negligent parent can be a violator of either one item on this list or several. It is necessary to understand that for each of them you will have to present officially issued confirmation.
How to change your last name without your dad's consent
Article 59 of the Family Code provides for cases when it is possible to change a child’s surname to the mother’s surname after a divorce without the consent of the father.
To do this, a woman should contact the guardianship and trusteeship authorities.
Her request will be satisfied in the following cases:
- Dad avoids paying child support on time without good reason. Strong evidence for changing a surname without the consent of the father is his refusal to support his children. It is best when, immediately after a divorce, a claim for alimony is filed and all receipts for their payment are preserved. In practice, there have been such situations where alimony was not paid, and the lack of receipts was explained by the fact that they gave the money personally to the spouse and bought things for their child.
- Dad does not want to participate in the upbringing and life of his children. To prove that a father does not find time for his children, you will have to look for witnesses. They can be employees of the kindergarten and school that the child attends, neighbors or acquaintances. In this case, you can achieve deprivation of the father of his parental rights.
- Impossibility of establishing the exact location of the father. It is sometimes possible to change a child’s last name if he does not live at his place of registration without his consent.
- The birth of children in an unregistered marriage. If the marriage was not formalized and paternity was not established, the father’s consent is not required. Because from a legal point of view, only the mother is the parent. If paternity has been established, but the children were not born in an official marriage, then you can go to court with a claim to invalidate it.
- The father was declared legally incompetent as a result of a mental disorder or other illness. To do this, you need to submit the relevant medical documents to the court.
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Cases when the consent of the second parent is not necessary
As already said, according to Art. 59 of the Family Code of the Russian Federation, the main basis for changing a child’s name is a joint request of the parents sent to the guardianship authority. However, the legislator has also provided for a number of exceptions that answer the question of how to change the surname of a child under 14 years of age without taking into account the opinion of the second parent.
To do this, one of the exceptional circumstances must exist, namely:
- inability to locate the other parent;
- ignoring alimony obligations;
- avoidance of parental responsibilities;
- birth out of wedlock;
- deprivation of parental rights;
- determination by the court of incapacity.
For a complete understanding, it is advisable to consider each of these grounds in more detail.
Unable to locate father
According to Part 2 of Art. 59 of the Family Code, the father’s consent to change the child’s surname is not mandatory in cases where it is not possible to establish his whereabouts. This, in particular, applies to cases where the parent does not live at his place of registration, in another locality or even state, without maintaining ties with the child and former family, is wanted for committing crimes or is listed as missing.
It is necessary to separate the reluctance and impossibility of determining the location: if the ex-spouse does not live at his place of registration, it is likely that his relatives live there and may have contact with him.
Please note that guardianship authorities are scrupulous in this matter, and therefore often require convincing evidence of the impossibility of determining the whereabouts of the child’s father. In such cases, the investigator's order to search or a judicial act declaring the father missing will be the most convincing evidence.
Non-payment of alimony
The responsibilities of each of the child’s parents, regardless of whether he lives with him or not, include the financial support of his offspring. For those parents who do not live with their children, it is in the form of alimony. Avoidance of this obligation without good reason, in accordance with Part 2 of Art. 59 of the Family Code is also a basis for ignoring the opinion of such a parent if they want to change the child’s surname.
To make it easier to prove the fact of evasion, alimony must be assigned in court or by documented agreement, and the collection itself must go through bailiffs. If there is arrears of alimony, the bailiffs will easily issue the appropriate certificate, which will become convincing evidence for the guardianship authorities.
But before changing the surname of a minor child to the surname of the mother, it should be taken into account that the specific period and amount of alimony debt, which makes it possible not to take into account the opinion of the defaulting father, is not determined by law. In the context of this, it is logical to use the period of non-payment qualified by Art. 5.35.1 of the Code of Administrative Offenses as evasion of alimony payment, and amounting to 2 or more months from the date of opening of enforcement proceedings.
Avoidance of raising a child
Similarly, the law allows the father’s opinion not to be taken into account when changing the child’s name if the father does not participate in his upbringing without good reason. And although this basis is one of the reasons for deprivation of parental status, it is quite difficult to prove the fact of such evasion.
Such evasion should be considered as a parent’s evasion from fulfilling his parental responsibilities specified in Art. 63-65 SK, although even there they are quite blurred. Avoidance of child support obligations can also be considered in the context of this ground, since child support is one of the main responsibilities of parents.
Bastard
Another case when a mother can change her child’s surname to her own, regardless of the opinion of the biological father, is determined by Part 3 of Art. 59 of the Family Code. According to it, the child must be born out of wedlock and the paternity of the biological father has not been established. In this case, the mother will only need to contact the guardianship authority, which will be able to issue permission to change personal data corresponding to her current surname. But even in this case, the guardianship authority is obliged to proceed from the interests of the child.
Father deprived of parental rights
According to Part 2 of Art. 59 of the Family Code, deprivation of parental rights is also included in the list of grounds that allow one to ignore the opinion of the biological father regarding changing the child’s name. Therefore, the answer to the question whether it is possible to change the surname and patronymic of a child if the father is deprived of parental rights will be positive.
According to Art. 70 of the Family Code, parental status is abolished in court, therefore, along with an application to change the child’s name, a corresponding court decision is submitted to the guardianship authorities.
Father's incapacity
Recognition of the incapacity of one of the parents is also recognized by the legislator as a valid reason for changing the child’s personal data without his consent and taking into account his opinion. Recognition of incapacity, according to Art. 29 of the Civil Code, carried out in court on the basis of mental disorders of the citizen. Please note that partial limitation of legal capacity caused by alcohol or drug addiction does not give the right to ignore the father’s opinion regarding changing the child’s name: in this case, it is necessary to obtain his consent.
Changing a child's surname and patronymic
To change a child’s surname and patronymic, it should be taken into account that the law establishes strict requirements.
Problems with this issue do not arise only if the child has a new dad who decides to adopt him or under the following circumstances:
In all other cases, a change of paternity of a child is impossible . If there are exceptional circumstances, this can only be done in court.
Upon reaching adulthood early and receiving full legal capacity, children can independently apply to change their surname. In this case, the consent of the guardianship authorities or parents is not required.
Changing a child's last name when receiving a passport
Upon receipt of a passport at the age of 14, a teenager can independently contact the registry office at his place of residence and apply for permission to change his surname. This is provided for in Article 58 of the Law “On Civil Status Acts”.
In this case, you cannot do without the permission of both parents . In addition, a minor child does not have the right to challenge this in court.
If permission is available, the minor must write an application indicating the following information:
Claim for child's place of residence
If it is impossible to agree on a place of residence, the interested person may apply to the court to resolve the situation. Clause 3 art. 65 of the RF IC indicates that when considering a case, the court takes into account the child’s attachment to his parents, to his usual place of residence, and his age. Moral qualities of parents, their financial situation. If the children are already old enough (10+), then the court will definitely ask their opinion.
The statement of claim is filed with the (district) court at the place of registration of the plaintiff, defendant, or place of residence of the child.
In the statement of claim, it is recommended to indicate the reasons why it would be more comfortable for the child to live with the plaintiff, and as evidence, they usually provide income certificates, documents on the right to the residential premises in which the plaintiff plans to live with the child, and a reference from work. It is also necessary to justify living with the plaintiff by the proximity of the kindergarten, school, and sports clubs that the child attends.
The trial always takes place with the involvement of a representative of the guardianship and trusteeship authority ( more about the guardianship and trusteeship authorities.. ).
Is it possible to change the surname and patronymic without parental consent?
The legislation stipulates at what age you can change your last name without parental consent.
This is possible if the teenager is already 16 years old, he is recognized as legally capable, and works under an employment contract or contract.
To do this, the minor must do the following:
If parents do not support their child’s initiative, he has the right to defend his rights in court.
