Request By:
Mr. Charles E. Allen, III
Attorney at Law
Sixteenth Floor
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise this question about a name change for a child under the age of 18. Your specific question reads:
"May a parent or guardian of a child under the age of 18 change the child's name without resort to legal proceedings under KRS 401.020?"
KRS 401.020 provides:
"A parent, or if no parent is living, the guardian, may have the name of a child under the age of eighteen (18) changed by the district court of the county in which the child resides. If the child resides on a United States army post, military reservation or fort his name may be changed by the district court of any county adjacent thereto."
Clearly under KRS 401.020 the name of a child under 18 may be changed by an action in district court in the county of the child's residence brought by one of the parents or, if no parent is living, the guardian, if any.
You are asking, in effect, whether this statutory procedure is the exclusive remedy in this regard.
It is our opinion that the statute, KRS 401.020, is not the exclusive method of changing a child's name. The statute contains no language suggesting that it is an exclusive method. It only requires [KRS 401.030 and 401.040] that a permanent record be made of the change of name. So there would be the advantage of documenting the name change in that fashion. Further, in
Winkenhofer v. Griffin, Ky., 511 S.W.2d 216 (1974) 218, the court expressly recognized that common law right of name changing. The court wrote:
"Under the common law the changing of a person's name was extremely informal and required nothing other than a public declaration on his part that from that day thence he should be known by his newly adopted name. KRS Chapter 401 does not change or substantially limit this common-law right, its primary effect being the requirement that a permanent record be made of the change of name.
In OAG 74-349 we concluded that a married woman may, without legal and statutory action, change her name under the common law. The common law rule is simply that in the absence of statutory restriction [and there is none in Kentucky except as to married women in KRS 403.230] one may lawfully change his name without resort to any legal proceedings as long as it does not interfere with the rights of others and where it is not done for a fraudulent purpose. See 65 C.J.S., Names, § 11(1) and 57 Am.Jur.2d, Name, § 10. See also 8 K.B.J. (1) 17 (1943).
Thus by statute a name change can be procured by any person 18 years of age or older and by an infant under 18 through a parent or guardian.
Under the comon law an adult person can informally change his or her name, as pointed out Winkenhofer v. Griffin, above. However, in case of an infant [under 18] the parent or guardian could informally effect a name change for the child by a public declaration that from that day on the child would be known by his or her newly selected name.
In connection with statutes authorizing the change in name of a minor, and in determining whether the change should be permitted against the objection, or without the consent, of one of the parents, "the courts have usually recognized that the welfare of the child should be the controlling consideration . . ." 57 Am.Jur.2d, Name, § 14, p. 284.
Under the general disabilities of infants, any name change of the infant in or out of court would have to be determined by parents or guardian. This is because of their lack of mature judgment and general inability to do things for themselves. Thus "they are subject to the continuing control and supervision of their parents or guardians until they become of age or are emancipated. . ." 42 Am.Jur.2d, Infants, § 8, p. 15. See KRS 2.015 as to statutory legal age.
In summary, a parent or guardian of a child under 18 years of age may change the name of the child without resort to legal proceedings under KRS 401.020. However, we believe that such a change should only be made where the parent or guardian has a valid reason to believe that the change would be to the best interests of the child. This informal method emerges out of the general common law rule. KRS 401.020 does not repeal the common law. It merely provides an additional method of effecting a change of the child's name. The advantage of the statutory procedure lies in the court record, which effectively documents the name change. 57 Am.Jur.2d, Name, § 11, p. 282.