Can I Change My Child's Last Name?

Can I Change My Child's Last Name?
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Last updated: July 2009

The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.  This article was published on July 21, 2009.

Q:    I want to change my daughter’s last name.  I originally wanted my daughter to have her father’s name, but now that the father and I aren’t together, I want my daughter to have my last name.  The father objects, and says he’ll fight it.  He’s kind of a jail house lawyer, and claims I need to prove by “clear and convincing” evidence that the name change is necessary, which he says I won’t be able to do.  Is that anything different than what’s required in all court cases?  If so, what’s the difference?

A:    He’s right; minor name changes require clear and convincing evidence.  That’s more proof than is usually required. 

From easiest to hardest, the three main burdens of proof that American courts apply are:  by a preponderance of the evidence; by clear and convincing evidence; and beyond a reasonable doubt.  The first two get applied mostly in civil cases.  Criminal cases require proof beyond a reasonable doubt. 

While it’s easy to list the different burdens of proof, they’re impossible to define precisely.  Some court cases even say trying to define them just makes things worse.  Nevertheless, judges apply those burdens of proof whenever they make a decision, just as juries do whenever they reach a verdict.

Most civil cases involve the easiest burden of proof:  by a preponderance of the evidence.  However, the Illinois Code of Civil Procedure, for example, doesn’t specifically spell that out (except for eviction cases).  The preponderance of the evidence test is really just something established over time by the traditions of the common law. 

Although it resists definition, preponderance of evidence is often described as more likely true than not; or more probable than not.  An instruction sometimes given to juries says it “means that a proposition must be shown to be more probably true than not true.”  Crudely, a preponderance of evidence slightly tips the scales of justice.

Clear and convincing proof is sometimes required in civil cases, and in criminal cases to prove the insanity defense.  Besides being required in minor name changes, other specific laws also require proof by clear and convincing evidence to modify child custody orders, get punitive damages, and to involuntarily terminate someone’s parental rights. 

That’s just a partial list of when proof by clear and convincing evidence is required. 

The Code of Civil Procedure actually defines clear and convincing evidence—but only for punitive damage claims in tort or product liability cases involving personal injuries or property damage.  Then, clear and convincing evidence “means that measure or degree of proof that will produce in the mind of the trier of fact a high degree of certainty as to the truth of the allegations sought to be established.”

The Code goes on to say that this “requires a greater degree of persuasion than is necessary to meet the preponderance of the evidence standard.”

So, clear and convincing evidence is more than just a preponderance of the evidence, but not as much as evidence beyond a reasonable doubt. 

The different burdens of proof explain how O.J. Simpson could be acquitted in his criminal case, but be liable for money damages in a civil case. 

“Burden of proof” can also get tricky, but in civil cases, when you file, it’s on you. 
 

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