SALLY DURHAM, APPELLANT,
v.
LANY MCNAIR, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a paternity suit, the Florida Fifth District Court of Appeal addressed whether a trial court properly established an extensive visitation schedule for the natural father and ordered that the infant child be given the father's surname over the mother's objections. The court affirmed the visitation schedule but reversed and remanded the surname issue, holding that paternity alone does not entitle a father to impose his surname without a best-interests-of-the-child determination.
The court affirmed the visitation schedule as within the trial court's discretion, finding it was worked out by the parties based on their work schedules without disrupting the infant's normal routine. The court reversed the surname order, holding that paternity alone does not entitle a father to impose his surname; instead, the trial court must make a finding that the name change is in the child's best interests based on evidence other than conclusory assertions.
[1] A trial court's discretion in establishing a visitation schedule for an infant will not be overturned if the schedule, though extensive, was agreed upon by the parties an…
[2] A party seeking to change a child's surname from that chosen by the mother bears the burden of proving that the change is in the child's best interest.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the mere fact that McNair happens to be the father of the child does not automatically entitle him to insist the child be given his surname”
Establishes the core holding that paternity alone does not support a surname change.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSally Durham and Lany McNair had an infant son born in July 1993. McNair was the biological father. The trial court granted McNair visitation from 2:3…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Paternity Suit cases and more on FLexlaw
W. SHARP, Judge.
On appeal, Durham argues that the trial court erred in this paternity suit in two regards: First, establishing such an extensive visitation schedule for Durham’s infant son with McNair, the natural father,1 and second, ordering that the child be called by his father’s surname, over her objections, based solely on McNair’s paternity of the child. There were two contested hearings held before the trial judge, but only one was reported and appears in the record on appeal. This forecloses our ability to review matters that turn solely on contested factual issues. See Zakhary v. Martin U.S.A., Inc., 640 So. 2d 1223 (Fla. 5th DCA 1994); Wright v. Wright, 431 So. 2d 177 (Fla. 5th DCA 1983).
With regard to the visitation schedule, it does appear to be more extensive than is customary in cases involving infants. The visitation periods extend late into the evening hours, long past a normal infant’s bedtime. However, there is some indication in the part of the record that we have that the hours were worked out by the parties, based on their individual work schedules, and they did not disrupt this infant’s normal schedule. Thus, we cannot rule that the trial court abused its discretion in devising the challenged visitation schedule. However, if the parties’ work schedules change, or have changed since this order was rendered, and maintaining such a schedule is detrimental to the child, our affirmance does not preclude Durham from seeking a modification, based on current circumstances.
With regard to the court’s requirement that the infant be given the surname of McNair, over the objections of Durham, we find that the record is insufficient to allow us to simply affirm. Pursuant to section 382.013, the trial court is authorized in a paternity proceeding to specify a surname for the child.2 But, the mere fact that McNair happens to be the father of the child does not automatically entitle him to insist the child be given his surname. See Levine v. Best, 595 So. 2d 278 (Fla. 3d DCA 1992); Collinsworth v. O’Connell, 508 So. 2d 744 (Fla. 1st DCA 1987).
The selection and change of the child’s surname from the name chosen by the mother must be based on the trial court’s determination that re-naming is in the child’s best interests, and the record must affirmatively show such a name change is required for the welfare of the minor child. In this ease, the record is silent on this issue, and the trial court has made no finding in this regard. In Collinsworth, the court pointed out that the party seeking to change the child’s name (here McNair) has the burden of proof on this issue, and the discretion of the court should be based on “some evidence other than the parties’ conclusory assertions appearing in the record before us_” 508 So. 2d at 747.
Accordingly, we conclude that remand is necessary to allow the trial court to reconsider the name issue, pursuant to the standard set forth in Collinsworth and Lazow v. Lazow, 147 So. 2d 12 (Fla. 3d DCA 1962), and for entry of an order specifying why the change of name is in the child’s best interest.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent herewith.
PETERSON, C.J., and GOSHORN, J., concur. . The child was bom in July 1993, and at the time of the proceeding, was one year old. McNair was given late night visitation from 2:30 p.m. until 11:00 p.m. on Mondays and Wednesdays, and overnight visits from 2:30 p.m. on Friday until 8:00 p.m. on Saturday, every other week.
. § 382.013(6)(c), Fla.Stat. (1993).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Tish Bardin v. State, 720 So. 2d 609 (Fla. 1st DCA 1998)…inal surname. See also, Levine v. Best, 595 So. 2d 278 (Fla. 3d DCA 1992)(hold-ing, in an adjudication of paternity, that the standard to be applied in determining whether to change a child’s surname is the best interest standard); Durham v. McNair, 659 So. 2d 1291, 1292-93 (Fla. 5th DCA 1995)(holding, in a paternity action, that “[t]he selection and change of the child’s surname from the name chosen by the mother must be based on the trial court’s determination that re-naming is in the child’s best interests,…
-
Girten v. Andreu, 698 So. 2d 886 (Fla. 3d DCA 1997)…ion of the judgment that changes the child’s surname from Girten to the father’s surname, Andreu. The mere fact that paternity has been established does not automatically entitle the father to insist the child be given his surname. Durham v. McNair, 659 So. 2d 1291 (Fla. 5th DCA 1995). This notion harkens back to outdated societal concepts of legitimacy, morality, and inheritance. Instead, “[t]he standard to [be] applied in changing a child’s name is the best interest standard.” Levine v. Best, 595 So. 2d 278,…
-
Adams v. Adams, 677 So. 2d 6 (Fla. 5th DCA 1996)…yrone. See § 61.13(2)(b)2, Fla.Stat. (Supp. 1994). The evidence regarding custody and visitation was in dispute and thus we find no abuse of discretion in the court’s rulings. See Regan v. Regan, 660 So. 2d 1166 (Fla. 3d DCA 1995); Durham v. McNair, 659 So. 2d 1291 (Fla. 5th DCA 1995). AFFIRMED in part; REVERSED and REMANDED in part. DAUKSCH, J., concurs in conclusion only. HARRIS, J., concurs specially with opinion. . See § 61.075(3), Fla.Stat. (Supp.1994); Finch v. Finch, 659 So. 2d 1351 (Fla. 5th DCA 19…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wright v. Huretta Moss Wright, 431 So. 2d 177 (Fla. 5th DCA 1983)
- Collinsworth v. O'Connell, 508 So. 2d 744 (Fla. 1st DCA 1987)
- Lazow v. Eleanore Lazow, 147 So. 2d 12 (Fla. 3d DCA 1962)
- Levine v. Best, 595 So. 2d 278 (Fla. 3d DCA 1992)
- Rifaat Zakhary v. Martin U.S.A., Inc., 640 So. 2d 1223 (Fla. 5th DCA 1994)