Why does South Carolina require court proceedings and a guardian ad litem for parents to change a child’s name by agreement?

Posted Friday, July 12th, 2013 by Gregory Forman
Filed under Child Custody, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

I occasionally get calls from folks wanting to change their child’s name.  Often both parents agree on the name change.  Yet South Carolina not only requires parents to obtain an order from the family court to change their child’s name, it also requires that a guardian ad litem be appointed for the child as part of any name change proceeding.  S.C. Code § 15-49-10(B).

For contested name changes (i.e., when the parents don’t agree) there’s a need for a court proceedings and (arguably) a guardian.   But for an uncontested name change these requirements are inexplicable.   At birth folks can give their child any name they want.  My wife was once providing social worker services for a mother who had just given birth to twins at MUSC.  That mother had allowed her four year old son to name them–which is why there are now African American twins running around South Carolina with the names Bubba and Mufasa.  Yet South Carolina’s Department of Health and Environmental Control (DHEC) has no problem with this–parents have the right to name their children at birth.  Why then, if parents agree to change a child’s name, should they need the court’s permission to do this?  Moreover, why do they need to obtain and pay a guardian ad litem to investigate and recommend the name change to the court?

The folks who call me about changing their child’s name by consent are shocked when I quote them a retainer, but court proceedings are time consuming and guardians cost money.  Even many family law attorneys seem unaware of this guardian requirement.

I rarely do name changes because this code section has made the procedure so expensive.  If someone understands why South Carolina has these requirements for uncontested name changes a comment explaining the rationale would be appreciated.

3 thoughts on Why does South Carolina require court proceedings and a guardian ad litem for parents to change a child’s name by agreement?

  1. Greg –

    I completely agree. I was recently hired as a GAL for an uncontested name change, and the process bothered me. The parents were married African immigrants who wanted to change the name of their infant child, because they were worried that his traditional African first name would subject him to taunting/bullying at school. He had a more Western middle name, and they simply wanted to reverse his first and middle names so that the Western name became his legal first name. We had to have 2 hearings because a judge continued the first one when, due to a language barrier, the judge believed that the father did not understand that the attorney technically only represented the mother, and that I was also not his attorney.

  2. Roy Stuckey says:

    South Carolina probably still recognizes the common law rule that “[a]t common law, a man may lawfully change his name, or by general usage or habit acquire another name than that originally borne by him, without the intervention of Court or Legislature. [citations omitted].” This is discussed in the Fourth Edition of Marital Litigation in South Carolina at pages 67-68 and 139-40. So, a person over the age of 18 is not required to go to Family Court to change their own name, although he or she might prefer to do so.

    With regard to minors, I opine on page 56 that “[t]he law appears to be that parents have a right jointly to adopt any surname for their child they wish to adopt, just as they determine what shall be a child’s given name, but South Carolina courts have not considered this in modern times.” If this is the law, does it mean that if both parents agree they can change a minor child’s name without court involvement? I don’t know, but I am not aware of any statute or case that prohibits it. Why would our society find this objectional as long as the purpose was not fraudulent or criminal?

    For example, if the parents decided to exercise their common law right to change their own names (see the first paragraph), shouldn’t they be allowed to change their children’s names, too?

  3. Beverly Hiott says:

    If a grandparent has been given rights to visitation and all of his records, the father of the child (their son) passed away, can they somehow fight a name change of the child? It was done without their knowledge until the mother posted it on facebook and the damage was done. Is there anything they can do to change the childs name back to what it was?

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