When will my 3 children get married
Change of name child
Name right child: family name
Expert in law
Dr. Britta Beate Schön
Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]
What family name does the child receive after birth?
If the parents are married to each other
If the parents have the same family name when the child is born, the child will be given this name. This also applies if the parents are divorced at the time of the birth. If the parents have different surnames, they can determine the name of the father or the name of the mother as the surname of the child within one month of the birth, Section 1617 (1) sentence 1 BGB. Double names from the mother's surname and the father's surname are not possible. If the parents fail to make a choice within this month, the family court grants one of the parents the right to determine the family name. Example: The mother's name is Meier, the father's name is Baum. The parents can decide within a month whether the child should be called Meier or Baum. But you can't call it Meier-Baum.
If the parents are not married to each other
In the case of unmarried parents, only the mother is entitled to custody at the time of the birth. That is why the child is given the mother's name. The parents who are not married to each other can, however, receive joint custody by submitting a so-called declaration of custody. If you have done this, you can determine the name of the father or the name of the mother as the surname of the child within one month of the birth, Section 1617 (1) sentence 1 of the German Civil Code (BGB). It is important that this declaration of custody is given before the birth. If it is only given after the birth of the child, the child is first given the name of the mother. In this case, the child's surname can be changed later to the father's surname under the following conditions:
- The child can be given the name of the father if both parents agree. If the child is at least 5 years old, the child must also consent (Section 1617a Paragraph 2 BGB). That doesn't change anything about the mother's sole custody.
- If the parents who are not married to each other submit a joint declaration of custody after the birth, they can determine within three months that the child should be given the father's surname (Section 1617b BGB). If the child is at least 5 years old, the child must agree.
- If the parents marry each other and choose a common family name, this name automatically becomes the child's family name. However, a child who is 5 years of age or older must agree to the name change (Section 1617c (1) BGB). If both parents keep their previous family name after the marriage, they can decide within three months that the child should be given the name of the father.
How can the child's family name be changed after the parents divorce?
After the parents divorce, the question often arises whether the child's surname can be changed. This question usually arises when the parent with whom the child lives either takes his maiden name again or when he remarries.
Change of name of the child if one of the parents adopts their maiden name again
Example: Jan Müller is the child of Mr. and Mrs. Müller. After the divorce, the child lives with its mother. Mrs. Müller takes her maiden name again and is now called Mrs. Becker. Can the child who lives with her now be named Jan Becker? Such a name change is problem-free if the other parent also agrees. If the child is already at least 5 years old, the child must also consent. But what happens if the other parent (usually the father) does not agree to the name change?
In this case, a name change is generally not possible. As an exception, a name change without the consent of the father is only possible if the name change is necessary for the best interests of the child. Section 3 (1) of the Name Change Act states that there must be an important reason for the name change. It is not enough for the mother to have a different last name than the child. Because the resulting inconveniences are only of a temporary nature, they disappear when the child is older or adult. Rather, what is required is that without a name change there is a risk of serious disadvantages for the child.
Change of name if one of the parents remarries
Example: Jan Müller is the child of Mr. and Mrs. Müller. After the divorce, the child lives with his mother, Mrs. Müller. Ms. Müller marries Mr. Schneider and is now called Ms. Schneider. Can the child who lives with her now be named Jan Schneider? If the mother with whom the child lives marries again, the child can be given the name of the new husband if the mother also adopts this name (§ 1618 BGB). However, the prerequisite is that the child's father agrees. If the child is already at least 5 years old, the child must also consent. If the child's father agrees, the child can also have a double name instead of the new family name, i.e. in our example Müller-Schmid or Schmid-Müller What happens if the father does not agree to the name change?
In this case, the family court can replace the father's consent, i.e. the family court allows the name change to be made without the father's consent. The court will only make such a decision if the name change is necessary for the best interests of the child. Section 3 (1) of the Name Change Act states that there must be an important reason for the name change. A name change is not necessary because the mother and her new husband have a different family name than the child living with them. So that alone is not enough. Because the name link to the "old" parent is also important and should in principle be retained. In addition, there must be more serious disadvantages for the child without a name change. Since this is seldom the case, it is also seldom that a court replaces the father's lack of consent.
It is easier if the child is to be given a double name instead of the family name of the new husband. In our example, this would be the case if Ms. Müller marries Mr. Schneider and is called Schneider herself, and the child is to be given the surname Müller-Schneider. In this case, the child also keeps his old family name. Therefore, in such a case, the courts do not place such high demands on the permissibility of the name change (e.g. OLG Cologne, 27 UF 221/01). Therefore, it should always be checked first of all whether the child cannot have a double name from his previous and the new family name.
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