In this issue, I will be addressing parentage actions related to children born out of wedlock.
Actions to establish paternity are controlled by Tenn. Code Ann. §36-2- 301 et seq. In Tennessee, most actions to establish paternity are brought in the juvenile court. However, a petition to establish parentage can be brought in the circuit or chancery court, as the three courts have concurrent jurisdiction pursuant to Tenn. Code Ann. §37-1-104(f).
A practitioner will want to carefully consider the court in which they choose to file an action to establish paternity based upon the needs of their client. Depending on the jurisdiction, one court may be able to adjudicate such a petition in a more timely manner. Likewise, some courts may have additional resources available to the parties to assist with determinations regarding custody, visitation and support. These resources include organizations such as court appointed special advocates (CASA). Another consideration is venue. An action for parentage may be filed in either the county where the purported father resides, the county where the mother resides, or the county where the child resides or is present when the application is made.
In Tennessee, the following persons may file an action to establish parentage of a child:
- The child’s mother. If the mother is a minor, the mother’s personal representative, parent or guardian.
- A man claiming to be the child’s father. If he is a minor, his personal representative, parent or guardian.
- The Department of Human Services or its contractor.
- If the child is a minor, the child through a guardian or next friend.
- The child, if the child has reached the age of majority.
An action to establish paternity may be instituted before or after the birth of the child and until three years beyond the age of the child’s majority. Tenn. Code Ann. §36-2-306. One may wonder why a child may wish to file an action to establish parentage after he or she has reached the age of majority. One answer would be to establish rights to inheritance.
One of the most contentious issues in these cases is the determination of the child’s last name on the child’s birth certificate. Many fathers presume that once paternity is established, the child will take his last name, especially if he has parenting time with the child and is paying child support. However, this is not the status of the law in Tennessee.
Tenn. Code Ann. §68-3-305(b)(1) establishes that the birth certificate of a child born to an unmarried mother shall reflect the mother’s surname unless both parents have requested otherwise. Furthermore, the child’s surname is not changed following a legitimation or paternity proceeding unless ordered by the court. In the case of Barabas v. Rogers, 868 S.W. 2d 283 (Tenn. Ct. App. 1993), the court set the standard for changing a nonmarital child’s surname as follows, “The court should not change a child’s surname unless the change promotes the child’s best interest. Among the criteria for determining whether changing a child’s surname would be in the child’s best interest are: (1) the child’s preference; (2) the change’s potential effect on a child’s relationship with each parent; (3) the length of time the child has had its present surname; (4) the degree of community respect associated with the present and proposed surname; and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or proposed surname.” Id. at 287.
The court of appeals has consistently held that a father’s desire that the child have his last name without anything more is not enough to effectuate a name change. See Sullivan v. Brooks, 2011 WL 2015516 (Tenn. Ct. App. May 23, 2011). Whited v. Fleenor, 2003 WL 1092968, 2-3 (Tenn. Ct. App. March 13, 2003). In Re Joseph H., 2015 WL 5032066, (Tenn. Ct. App. August 25, 2015). While the Tennessee Court of Appeals has been reluctant to overturn a father’s request to change the child’s surname to his, the court has been more receptive to hyphenating a child’s last name to reflect both parents’ surnames. The court has found that hyphenating a child’s surname to include his father’s surname would affirm the bond with the child’s father. See In Re A.M.K., 2011 WL 3557083 (Tenn. Ct. App. August 11, 2011) Connor v. King, 2009 WL 3925164 (Tenn. Ct. App. November 18, 2009). Joshua L. Rogers
