Can I change my child's name if the wrong man is named on her birth certificate?

Question

A paternity test has shown that the person named on my child's birth certificate isn't actually her father. Can I legally remove the man's name from my child's birth certificate and change her last name to mine? What should I do?

Answer

A child's birth certificate is one of the most important documents you can provide. Not only does it provide your child with a name and birthdate, but it also identifies citizenship and birth parents. It's important for the document to be accurate, especially since your daughter will use it to apply for a passport and driver's license.

Removing the Wrong Father's Name

Each state has its own, unique process for removing a non-biological father's name from the birth certificate. Your first step is to contact your state's Vital Records department to ask about the requirements. If you're unsure, you should consider hiring an attorney.

In some states, like Michigan, you can complete an application to remove or replace a father on the birth record. To remove a name, you'll need to fill out the form and provide a copy of a court order (like your judgment of divorce), or a court determination of non-paternity.

Other states require you to file a legal request through the court before you can modify the birth certificate. For example, California has a two-step process: First, you'll need to file a motion with the court and obtain a court order that allows you to remove the father's name. Within this first step, you'll need to prove paternity (or non-paternity.) Once you obtain a court order, you can submit the appropriate fee, the application to change the birth certificate (called the affidavit to amend a record), the court order, and a photocopy of the current birth certificate.

Paternity Tests

If your state requires proof of paternity, you'll need to utilize the court system to help you. You mentioned that you have results from a paternity test to prove that the man listed on the certificate isn't your child's father, but you didn't say what type of analysis you used.

At-home paternity or DNA tests will not qualify as court-ordered paternity tests, so even though it may help you decide if you should pursue the matter, it's not enough proof for the judge. If you need a court order for non-paternity, you'll need to file a motion (request) with the court to request an official paternity test. Once the court receives the results, the judge will issue a judgment to you that you can submit to your Department of Vital Records.

Your Child's Best Interest

It's important to understand that even if you have evidence of non-paternity, sometimes the court won't allow you to remove the father's name from the birth certificate, mainly if the "parent" has supported the child. The judge's primary concern is whether removing the father's name is in the child's best interest.

It's critical for you to act quickly if you believe you listed the wrong father, and, if you're the person listed on the birth certificate, but you have doubts about the accuracy, act quickly, or you risk the court ordering you to care for a child that isn't yours.

Changing Your Child's Name

Depending on your child's age, changing her name may not be too complicated. Most states allow parents to modify the birth certificate and change a child's name within one year of birth, but with limitations. For example, if your child's name is misspelled, you can request a correction without any additional steps. However, every state varies in its rules, so if you aren't sure what your state requires, you may want to contact a family law attorney.

If the court hasn't determined paternity for your child, and the person listed on the birth certificate isn't the biological parent, you should be able to change your daughter's name on her birth certificate without much trouble. But, you should contact your Department of Vital Records to inquire what steps you need to take.

Remember, if the court identifies your child's biological parent, you may need to use the formal name change process and notify the other parent before the court will consider a change. Start by contacting your local court to determine which court handles name changes. In many states, the probate court will deal with your request.

Next, file a petition for name change, which may be as simple as filling out a form and paying a filing fee. You'll need to explain to the court why you want the name change, declare that you aren't doing it for fraudulent purposes and that it's in your child's best interest. You'll need to attend a court hearing where the judge may ask you some questions. Make sure you bring copies of your court paternity test, and any other documents you believe will be helpful. Once the court issues a final judgment, you can submit a request for a new birth certificate.

If you're dealing with paternity or birth certificate issues and you aren't sure how to proceed, you can use Nolo's lawyer directory to find a qualified attorney near you.