Virginia Lawyers Weekly VA Lawyers Weekly
The inconvenience and embarrassment suffered by a child’s father is not sufficient to support his petition under Va. Code § 8.01-217 to change the child’s surname from the mother’s maiden surname to the father’s surname, and the Supreme Court of Virginia upholds the trial court’s denial of the father’s petition.
The mother and father never married, but shared custody of their daughter. The mother later married and took her husband’s surname, so the child did not share a surname with either parent. The mother’s name was Melanie White Wirick.
At trial, the father, Stacy McMahon, proffered evidence of a number of difficulties caused by not sharing a surname with his daughter Addison. He alleged he received medical bills with the name “Addison Wirick” on them, that he had difficulty contacting Addison’s pre-school because she was enrolled as “Addison Wirick,” that he is constantly called “Mr. White” at school and that a photograph for a school genealogy project identified McMahon, his wife, his son (Addison’s half-brother) and Addison as “the White Family.”
In denying the petition, the trial court explained McMahon failed to meet any of the criteria laid out by this court in Spero v. Heath, 267 Va. 477 (2004). The father claims this case does not apply because here the child does not share a surname with either parent. However, the controlling standard remains the same – that the petitioning party must prove by satisfactory evidence that the change is in the child’s best interests. We hold the trial court did not err to the extent it relied on Spero to determine whether the name change was in the child’s best interest.
The evidence presented by McMahon involved the inconvenience and embarrassment that he felt as a result of having a different surname. He failed to produce any evidence that Addison suffered any such inconveniences or embarrassment, much less that she suffered “substantial detriment.” Here, the evidence is clear that McMahon experienced no more than minor inconveniences or embarrassment and it is inconclusive that Addison experienced any complications as a result of not sharing a surname.
We cannot say the trial court abused its discretion in denying the petition.
Judgment affirmed.
Concurrence
McClanahan, J.: Although I agree the trial court did not abuse its discretion in denying the petition for a name change under the best interest analysis, I would hold that the four-factor analysis in Spero v. Heath is not applicable to this case and that the trial court erred in applying it.
The trial court concluded in the alternative that the name change was not in the best interest of the child. Applying the best interest standard of Code § 8.01-217, I agree with the majority opinion that McMahon failed to prove that the name change was in the child’s best interest. I concur in the court’s judgment that the trial court did not err in denying the petition.
McMahon v. Wirick (Powell) No. 131910, Sept. 12, 2014; Fairfax Cir.Ct. (Bellows) Mary Elizabeth White for appellant; Harold E. Oliver III for appellee. VLW 014-6-071, 11 pp.
