Sunday, March 21, 2010

Name Changes

By John DiMotto

At the end of my blog discussing the cost of litigation, I indicated that in upcoming blogs I would discuss the various types of civil cases that come before the court. The first one I would like to cover involves "Name Changes."

There are two primary types of court actions that can be pursued to effectuate a name change. First, bringing an action under section 69.12 to correct a mistake on the birth certificate. Second, bringing an action under section 786.36 to select a new name.

An action under 69.12 can be brought by a person with a direct and tangible interest in the vital record. In Milwaukee County these actions are assigned to the daytime Duty Judge. (Every week one judge from either the Civil or Family Division is designated the Duty Judge.) The procedure is that the person seeking the name change obtains a civil case number for the action from the clerk of circuit court and then goes to the courtroom of the daytime Duty Judge with the Petition and supporting documentation. The judge reviews the documents and then goes "on the record" and questions the petitioner regarding what the error in the original birth certificate is and the reason, if known, for the error. If the judge is satisfied that the information to be corrected was erroneous, the judge will sign an order for the change. The Order is then recorded with the Register of Deeds and sent to the State of Wisconsin Vital Statistics Department for VS to make the changes on the birth certificate.

An example of such an action is that the person at the hospital misspelled a name. Instead of putting "Katherine" on the birth certificate "Kathryn" was put on the document. A change can be made without court order within the first year of the mistake. After one year, the change requires a court order. Many errors on the birth certificate can be changed but not all. For example, you cannot add a father's name.

An action under 786.36 is brought by a person or parents on behalf of their child. This is a situation where a totally new name is being selected. This action requires; notice to the public via publication; if the person is licensed to practice a profession in Wisconsin (teaching license excepted) the person needs the permission of the licensing agency; the person cannot be a convicted sex offender who is prohibited from changing his/her name. Furthermore, anyone can object to the change. If an objection is interposed then the court will decide whether to grant the change.

Usually, a name change under 786.36 is uncontested, however, not always. If one parent wants to change a child's name, if the petition is not joined by the other parent, the court must do an analysis of the factors set forth in 786.36 and make a decision. We see contests in a situation where the parents were not married, are no longer a couple and one parent wants a name change to remove the surname of the other parent. Ordinarily, the burden of proof cannot be met by the petitioning parent and the child's name remains until age 14 when the child can personally petition the court. These situations can be very ugly. It becomes the responsibility of the judge to fully explain to the contestants what the law is and why the judge is making his/her decision.

In my next blog, I will look at Minor Settlements.

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