MADISON - A state appeals court Thursday ruled that a Monroe woman does not have to give her child the last name of the child's father.
The District IV Court of Appeals opinion overturns visiting Lafayette County Circuit Judge Duane Jorgenson's decision to direct Sara Scace to change the surname of her child to Scace-Shulte.
According to court documents:
Scace was unmarried in 2014 when she gave birth to Alyssa. The birth certificate only lists Scace's surname but indicates that Bryan Schulte is the father.
Shortly after Alyssa's birth, Schulte signed a voluntary acknowledgment of paternity form, asserting that he is her father. Scace and Schulte then resolved by stipulation several issues including custody, visitation, child support and medical expenses, which Jorgenson adopted.
Schulte then informally requested Alyssa's name should be changed. Based only on the briefs submitted, Jorgenson decided that Schulte should be added to Alyssa's last name.
Jorgenson also found that he had the authority to change Alyssa's name and that having a hyphenated last name was in Alyssa's best interest as it would "encourage and nurture (a child) to have a bond and identification with both parents."
Scace's attorney, Daniel Bestul, appealed, arguing that Jorgenson did not have authority to order a name change after paternity had been voluntarily acknowledged.
Jorgenson erred by using a statute subsection governing how paternity is determined, Bestul claimed. Also, in deciding what is in the child's best interest, evidence must be submitted for the court to evaluate. In this case, Jorgenson also erred in resolving the name issue without taking any evidence, according to Bestul.
Schulte's attorney, Roger Merry, argued that there was no request for a hearing on the child's best interest in the name change issue. Instead, Jorgenson could rely on the stipulation the parties, including Alyssa's guardian ad litem, agreed to, that the name change was in her best interest, Merry contended.
The District IV court disagreed, finding that while two subsections of a statute were at issue in the case, one that applies does not give Jorgenson the authority to change the child's name.
"(T)he legislature intended not to grant the circuit court the authority to change a child's name where paternity is determined through voluntary acknowledgment," Judge Gary Sherman wrote in the nine-page opinion.
The opinion vacates Jorgenson's order to add Schulte to Alyssa's last name.
Bestul asked the appeals court to give the decision precedential value as cases involving "non-marital children" are increasing and clarifying standards for their names can be changed would be helpful to judges.
In a phone interview, Bestul said there were legal procedures available to men like Schulte who want their "non-marital" children to have their last names but they were not followed.
"There's an opportunity to give a child a hyphenated last name ... but it should be handled when the paternity is acknowledged," he said.
Bestul also said his client was "very pleased with the outcome of the case."
A call to Merry for comment on the opinion was not returned by deadline.
The District IV Court of Appeals opinion overturns visiting Lafayette County Circuit Judge Duane Jorgenson's decision to direct Sara Scace to change the surname of her child to Scace-Shulte.
According to court documents:
Scace was unmarried in 2014 when she gave birth to Alyssa. The birth certificate only lists Scace's surname but indicates that Bryan Schulte is the father.
Shortly after Alyssa's birth, Schulte signed a voluntary acknowledgment of paternity form, asserting that he is her father. Scace and Schulte then resolved by stipulation several issues including custody, visitation, child support and medical expenses, which Jorgenson adopted.
Schulte then informally requested Alyssa's name should be changed. Based only on the briefs submitted, Jorgenson decided that Schulte should be added to Alyssa's last name.
Jorgenson also found that he had the authority to change Alyssa's name and that having a hyphenated last name was in Alyssa's best interest as it would "encourage and nurture (a child) to have a bond and identification with both parents."
Scace's attorney, Daniel Bestul, appealed, arguing that Jorgenson did not have authority to order a name change after paternity had been voluntarily acknowledged.
Jorgenson erred by using a statute subsection governing how paternity is determined, Bestul claimed. Also, in deciding what is in the child's best interest, evidence must be submitted for the court to evaluate. In this case, Jorgenson also erred in resolving the name issue without taking any evidence, according to Bestul.
Schulte's attorney, Roger Merry, argued that there was no request for a hearing on the child's best interest in the name change issue. Instead, Jorgenson could rely on the stipulation the parties, including Alyssa's guardian ad litem, agreed to, that the name change was in her best interest, Merry contended.
The District IV court disagreed, finding that while two subsections of a statute were at issue in the case, one that applies does not give Jorgenson the authority to change the child's name.
"(T)he legislature intended not to grant the circuit court the authority to change a child's name where paternity is determined through voluntary acknowledgment," Judge Gary Sherman wrote in the nine-page opinion.
The opinion vacates Jorgenson's order to add Schulte to Alyssa's last name.
Bestul asked the appeals court to give the decision precedential value as cases involving "non-marital children" are increasing and clarifying standards for their names can be changed would be helpful to judges.
In a phone interview, Bestul said there were legal procedures available to men like Schulte who want their "non-marital" children to have their last names but they were not followed.
"There's an opportunity to give a child a hyphenated last name ... but it should be handled when the paternity is acknowledged," he said.
Bestul also said his client was "very pleased with the outcome of the case."
A call to Merry for comment on the opinion was not returned by deadline.