Recently, Attorney Kenny Yoffy represented a mother who was involved with a Name Change Petition filed by a father who sought to change their child’s last name to his surname. The matter had been litigated twice by the father in Circuit Court and each time the Court ruled against the father’s request for a name change. In the last Circuit Court case, the court granted mother’s Motion to Strike father’s case without her having to present any evidence. The Circuit Court ruled that there was no showing by the father of a substantial detriment to the child by bearing the mother’s last name which was comprised of her last name and her new husband’s last name. Under Virginia law, father had the burden of showing that the name change was in the best interest of the child. The Court follows a number of factors in determining whether the change of the minor’s name is in his/her best interest and includes (1) whether the parent sharing his or her surname with the minor child has “abandoned the natural ties ordinarily existing between the parent and the child”, (2) whether the parent sharing his or her surname with the minor “has engaged in misconduct that is sufficient to embarrass the minor in the continued use” of the parent’s name, (3) whether the minor “otherwise will suffer substantial detriment” by bearing the surname he or she currently bears, or (4) whether the minor “is of sufficient age and discretion to make an intelligent choice and desires that his or her name be changed”. The only factor involved in this case was set forth in (3) above. In making it’s ruling against the father, the Circuit Court Judge stated he was unable to see any detriment that could come to a three year old child by retaining his mother’s last name and he applied the common sense adage that “if it ain’t broke, don’t fix it”.
Nevertheless, father was dissatisfied with the Circuit Court’s ruling and appealed the decision to the Supreme Court of Virginia. After the Petition for Appeal was filed, Attorney Yoffy filed a Brief in Opposition. The Supreme Court heard father’s counsel’s argument on the matter and refused to grant certification of the appeal, thereby agreeing with Attorney Yoffy’s original argument and the Circuit Court’s decision.