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Mississippi Supreme Court rules on child's surname in paternity action

By Robert M. Kisselburgh, Esq.

Madison County paternity action ends up with Mississippi Supreme Court over name

A Madison County paternity case landed in the Mississippi Supreme Court over the interpretation of Mississippi Code Section 93-9-9(1)--the child's last name in a paternity action. In Rice v. Merkich, the girlfriend became pregnant while the couple was dating. Although they originally planned to marry, the couple separated. The mother did not inform the father when the child was born and put her last name on the birth certificate for the child's surname. Within ten days of the baby's birth, the father filed a paternity action in Madison County Chancery Court. After DNA testing established Merkich was the father, the father filed for joint custody and also requested the child's name be changed to his last name. Judge Brewer agreed with the father, ordered the child's last name changed to his surname, and the mother appealed.

On appeal, the mother argued the child's surname should not have been changed to the father's. The problem was Mississippi Code section 93-9-9 (1) states,

"In the event of court-deteremined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise."

Given the statute does not specify those situations that would justify departing from using the father's surname, the 7-2 decision stated:

'in the event of court-determined paternity,' where a party to the action contends that the surname should not be 'that of the father,' then, and in that event, that party must prove by a preponderance of the evidence that it is in the child's best interest that the surname not be 'that of the father.'

The Court went on to consider the strong statutory presumption that the child's name should be that of the father especially given the evidence showed had he known of the birth, he would have been at the hospital and signed an acknowledgement of paternity. If that occurred, Mississippi Department of Health regulations required the child have the father's surname, unless both parties signed a statement otherwise. The only evidence offered by the mother was that by her and the child have different last names, it could possibly be embarrassing and confusing. This evidence was simply not enough to show the change of the child's surname was in the child's best interest.

While two justices dissented over the issue of when the best-interest-of-the-child test should be employed and whether it was employed by the Chancellor in this case, I think the majority was clear as to its application in the future. In the future, if a mother contest changing the child's surname to the father's surname in a paternity action, the mother must prove by a preponderance of the evidence that the child keeping the mother's last name is in the best interest of the child.

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Full post as published by Mississippi Family Law Blog on June 15, 2010 (boomark / email).