A trial court improperly held that the surname of a child born out of wedlock should be changed from the mother’s surname to the biological father’s surname, the Michigan Court of Appeals has ruled.

In Stump v Jagielski (Docket No. 351629), the plaintiff and the defendant dated in high school. Shortly after their relationship ended, the defendant gave birth to a child. Genetic testing showed that the plaintiff was the child’s biological father. The plaintiff filed an action in Hillsdale County Circuit Court to establish paternity, custody, parenting time and support. He requested that his name be included on the child’s birth certificate and that the child’s surname be changed to his surname. The trial court entered a temporary order allowing the name change.

The Court of Appeals reversed.

“Under the circumstances presented in this case, the law gives the mother the legal right to choose the child’s surname,” the Court of Appeals wrote. “Accordingly, the trial court erred when it granted plaintiff’s request to change the child’s surname to one the child’s mother did not choose.”

Judges David H. Sawyer, Anica Letica and James Robert Redford were on the panel that issued the unpublished opinion.

Background

In his motion to establish paternity, the plaintiff asked the trial court to order that his name be added to the child’s birth certificate to identify him as the child’s father. He also asked the trial court to change the child’s surname to his surname, Stump.

The defendant objected to changing the child’s surname. She maintained that, under MCL 333.2824, as the child’s mother she had the legal right to determine the child’s surname. She also asserted that she did not want the child to have the plaintiff’s surname and she requested that the child’s surname remain Jagielski.

During a hearing on the plaintiff’s motion, the defendant’s attorney addressed the plaintiff’s request to change the child’s surname and said: “I know what the perspective of this Court is on that, but … my client[] request[s] that the child be able to keep her name.” Without permitting a response from the plaintiff’s attorney, the trial court granted the request to change the child’s surname. In its ruling, the trial court said: “The child’s gonna take the name of Stump. He’s the father. [The child’s] gonna take the father’s name.”

The trial court entered a temporary order regarding custody, parenting time and support. The order included a directive that the child’s “last name shall be changed to ‘Stump’” and that “an amended birth certificate … be issued to reflect” the child’s name change. The trial court also ordered that the plaintiff be identified as the child’s father and that his name be added to the child’s birth certificate to reflect his paternal status.

The defendant appealed.

Surname Selection

“The sole question presented [on appeal] is who has the legal right to select the child’s surname,” the Court of Appeals said.

According to the Court of Appeals, the Michigan Legislature has provided “numerous statutory paths to establishing paternity” when a child is born out of wedlock, including the Paternity Act (MCL 722.711, et seq.), the Acknowledgment of Parentage Act (MCL 722.1001, et seq.) or the Genetic Parentage Act (MCL 722.1461, et seq.).

However, “[n]othing in the statutes of this state require that a minor child bear the father’s surname,” the Court of Appeals said, citing Garling v Spiering, 203 Mich App 1 (1993).

Further, MCL 333.2824 - the statute regulating the process of registering the father’s name and the child’s surname on a birth certificate - affirms this, the Court of Appeals said. In pertinent part, the statute says: “… (3) If the name of the child’s father cannot be shown under subsection (1) or (2), the child shall be given the surname designated by the mother. (4) If the paternity of a child is determined by a court of competent jurisdiction, the name of the father shall be entered on the certificate of birth as found and ordered by the court. The surname of the child shall be entered on the certificate of birth as designated by the child’s mother.”

This statutory language, the Court of Appeals said, is “straightforward and controls the outcome in this case” because 1) the defendant was not married to the plaintiff or another individual at the child was conceived or born, 2) the defendant did not provide written consent and 3) the plaintiff never completed and filed an acknowledgment of parentage. “Because subsection (1) and (2) did not show the child’s father’s name, the child’s birth certificate listed the surname designated by defendant, the child’s mother. … Defendant chose to give the child her surname, Jagielski.”

Despite the defendant’s objection to changing the child’s surname, the trial court ordered the child’s surname be changed to the plaintiff’s surname, the Court of Appeals noted. “Without citation to any legal authority, the circuit court’s sole proffered reason for changing the surname the child’s mother had given the child was simply that plaintiff was the child’s biological father. This is not sufficient reason and contravenes the clear and unambiguous language of MCL 333.2824(4), which plainly states that ‘[i]f the paternity of a child is determined by a court of competent jurisdiction … [t]he surname of the child shall be entered on the certificate of birth as designated by the child’s mother.’ The word ‘shall’ denotes a mandatory, not discretionary, action.”

Here, the defendant - the child’s mother - designated Jagielski as the child’s surname. “The circuit court committed clear legal error when it changed the child’s surname. … The surname chosen by the child’s mother, Jagielski, shall remain on the child’s birth certificate.”

Accordingly, “[b]ecause the law gives defendant, not plaintiff, the right to select the child’s surname, we reverse and vacate that portion of the circuit court’s order,” the Court of Appeals concluded.