A Bath County boy will now carry the surname of his father, after the man successfully petitioned the court for a name change.
Name-change cases are not common, but Roanoke lawyer Vicki L. Wiese, who represented the father, said courts are likely to see more such litigation in the future, as more and more children are born out of wedlock, like the boy here.
The case also is notable for its posture: It was the father seeking to change the name of his son, who lives with his mother.
Bath County Circuit Judge Humes J. Franklin Jr. granted Joshua McAllister’s request in a one-page order, In the Matter of a Change of Name of a Minor (VLW 012-8-143)
Franklin provided no analysis, stating only, “There simply is no question in this court’s mind that the clear and convincing evidence is that it is in the best interest of this young man’s present and future circumstances to bear his father’s name.”
The mother, Kodie Criser, and McAllister never married after their son, Aiden, was born in 2010.
McAllister works as a corrections officer, and he is now married. He filed suit under Virginia Code § 8.01-217(A) to change Aiden’s surname from Criser to McAllister. In pleadings McAllister wanted his boy to carry his name because, among other reasons, he currently has no other children. He also was concerned that Criser would get married, change her surname and want to change Aiden’s name to match her own.
According to Wiese, McAllister testified that he and Criser had a number of conversations about the child’s name before he was born, but he did not know the actual name until after Aiden was born.
Criser strongly disputed that testimony at the hearing, Wiese said. In her words, “She was on Venus and he was on Mars.” She added that other witnesses backed her client’s version of the name conversations.
McAllister had signed an acknowledgement of paternity form, but testified that he did so out of fear that Crider would withhold contact with the boy if he failed to do so, said Wiese.
Criser’s lawyer, Lexington attorney Donald M. Burks, argued that McAllister’s signature should bar his petition, based on equitable estoppel. Wiese challenged that assertion, arguing there is no case law on the point. The judge made no mention of this line of argument in his order granting the name change.
Wiese noted that in preparation for this litigation, she had her client undergo DNA testing to establish that he was in fact Aiden’s biological father. Once that fact was established, he was granted joint legal custody and regular visitation.
Burks could not be reached for comment before press time.