Today, people call themselves by all sorts of names – nicknames, formal names, legal names or just the name they like best.  Which one is really legal and does it matter?  Who decides the name?

Common Law Rule

In Kansas a person can change his or her name under the common law (law established by usage and custom, which is not statutory) to any name he or she chooses so long as the reason behind the name change is neither fraudulent nor an infringement on another’s rights.  A person may simply begin to use the chosen name without any involvement with the court system or legal formalities.  In re Morehead, 10 Kan. App. 2d 625, 627, 706 P.2d 480, 482 (1985). 

Statutory Provisions

In Kansas the legislature has codified name changes and in so doing has incorporated the common law rule.  There are various reasons why an individual may prefer the statutory name change.  Most significantly, the statutory name change establishes a  formal, legal record that the name has in fact been changed.

The statutory provisions regarding a name change in Kansas are contained in K.S.A. 60-1401 et seq.  The person requesting the name change must file a petition in the county in which he or she resides.  The petition must provide:

1. that the petitioner has been a resident of the state for at least 60 days
2. the reason for the change of name, and
3. the name desired.  K.S.A. 60-1402(a)

Kansas statute section 60-1402(b) governs notice of the name change.  The statute provides that service of notice of the hearing may be made either by mail or by publication, in the discretion of the court. 

If the notice is directed by publication, such notice shall be published as provided in K.S.A. 60-307(d) , and amendments thereto. Thus, the notice of hearing must be published once each week for three consecutive weeks in a newspaper authorized to publish legal notices in the county in which the petition is filed. 

 If the notice of hearing is directed to be given by mail, service of notice may be made by registered or certified mail to parties of interest, as prescribed by the court.

The court shall order the name change so long as the court is satisfied as to the truth of the allegations of the petition and that there is a reasonable cause for changing the name of the petitioner.  K.S.A. 60-1402(c). 

The petitioner bears the entire cost of the name change proceeding.  K.S.A. 60-1401.  After the name change is completed a new birth certificate may be obtained.  K.S.A. 65-2422a.  An authenticated copy of the name change order must be presented to the Office of Vital Statistics.  The Office of Vital Statistics shall then issue a new birth certificate marked, “Amended” listing the individual’s new name.  The person whose name has been changed may receive copies of his or her birth certificate showing the name as originally entered only upon order of the court.  Id.

Name Changes under Specific Circumstances

In addition to filing a petition pursuant to K.S.A. 60-1401 et seq. there may be situations in which the possibility of a name change arises.  Some of those situations are briefly touched upon below. 

Married Women - Married women are not required to take the name of their husbands.  Kansas has neither specific statute nor case law requiring a married woman to assume her husband’s surname.  Thus, a woman may use whatever name she wishes as long as the name is neither fraudulent nor an infringement on another’s rights. 

Divorce - Upon the dissolution of a marriage, and the request of a spouse, the court shall order the restoration of that spouse’s maiden or former name.  K.S.A. 60-1610(c)(1). 

Minors (children) - A minor cannot, on his or her own, bring an action to change his/her name but a suit may be brought by and through a parent or other adult acting as the child’s “next friend.”  In determining whether to grant the name change the court bases its decision on the best interest of the child.  However, the court has neither statutory authority nor jurisdiction to change the name of a child, born of the marriage, in a divorce proceeding.  In re Marriage of Killman, 264 Kan. 33, 955 P. 2d. 1228 (1998). 

Paternity – The Kansas Parentage Act does not provide any statutory authority for changing a child’s name.  However, pursuant to K.S.A. 38-1130, the court may amend a child’s birth certificate to make it consistent with paternity. 

Regarding a child’s name, Kansas has no presumption that the paternal surname should be used.  J.N.L.M ex Re. Killingsworth v. Miller, 130 P.3d 1223 (2006).  Rather to determine what surname is appropriate, the court uses the best interest test.  If the court determines that the name change is in the child’s best interest, the court may change the surname of a child.  M.L.M. v. Millen, 28 Kan.App.2d 393, 15 P.3d 857 (2000). 

Where a child is born to a non marital relationship and the child’s surname is contested, the factors to be considered in determining whether a child’s surname should be changed are the best interests of the child and the interests of the parents.  The application of the best interests test may include such considerations as:

1. the child’s preference in light of the child’s age and experience;
2. the effect of a name change on the development and preservation of the child’s relationship with each parent;
3. the length of time the child has used the name;
4. the difficulties, harassment, or embarrassment a child may experience from bearing the present or proposed name;
5. the possibility that a different name may cause insecurity and lack of identity;
6.  and the motive or interests of the custodial parent.

J.N.L.M ex Re. Killingsworth v. Miller, 130 P.3d 1223 (2006)

Adoption – A person shall assume the surname of the petitioner(s) for adoption.  However the court has the discretion to order a different name when requested by the petitioner(s).  K.S.A. 59-2118(a).  The district court reports an adoption to the state registrar of vital statistics.  The registrar then prepares a supplemental birth certificate reflecting the adopted’s new status and new name.  K.S.A. 59-2119.

Conclusion

People may call themselves whatever they wish.  However, people who are certain that they want to change their name should consider the statutory rather than the common law route to ensure the change.

To reach the author, call Kathy Barker at (913) 438-4636,

or send e-mail to Kathy@yourchild1st.com .

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The information on this site is only for general educational purposes, and not for legal advice. Laws change, and their application may vary significantly depending on your circumstances. If you need legal advice, you must consult an attorney.  The choice of a lawyer is an important decision and should not be based solely upon advertisements.

© 2006 Scott Wasserman & Associates, LLC