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All in the Family: Name change notice and rights of biological fathers

Cynthia Brown and Jason Brown

Cynthia Brown and Jason Brown

On Jan. 22 the Minnesota Supreme Court issued its decision in In re the Matter of the Application of JMM. On the surface JMM seems to address a relatively simple question involving a name change. A deeper reading reveals more.

JMM (“Mother”) was mother to three pre-teen children. Mother was not married when of the children were conceived or born. No one had been adjudicated the father of the children. Mother chose the children’s names at the time of their birth.

In October 2015, Mother filed name-change petitions for all three kids. In her application, she noted that “the non-applicant parent is unknown…and [his name] is not shown on the birth certificate.

During a subsequent call with the District Court, Mother confirmed that she knew the identity of the biological father. However, she suggested that she did not know of his whereabouts.

The District Court followed up with a letter to Mother, indicating that “both parents” must be afforded notice of the pending applications for name change. The court further indicated that her petitions would be dismissed if she failed to provide proof of notice to biological father of the hearing.

Mother’s counsel submitted a letter to the District Court, arguing that notice was not required under Minn. Stat. sec. 259.10 because the children did not have another “legal” parent.

The District Court dismissed Mother’s petitions without prejudice, reasoning that the phrase “both parents” within Minn. Stat. sec 259.10 “plainly and unambiguously refers to the biological father and biological mother of the child.”

The Minnesota Court of Appeals reversed, holding that the phrase “both parents” was ambiguous and that notice is only required if a parent-child relationship is established pursuant to the Minnesota Parentage Act.

On remand, Mother testified there was a single biological father for all three children. The District Court determined that biological father “has a legally recognized parent-child relationship…and is therefore entitled to notice.”

The Minnesota Court of Appeals again affirmed, indicating that the biological father “had an unrebutted presumptive parent-child relationship under the Parentage Act.”

Chief Judge Edward Cleary dissented. He noted that because the biological father did not receive the child into his home and openly hold the child out as his biological child, there was no presumption of paternity. Therefore, Mother was under no requirement to provide notice of the name change petition to biological father.

The Minnesota Supreme Court granted Mother’s petition for review and reversed in a 5-2 decision. The issue before the court involved the definition of “both parents” within the name change statute.

Writing for the majority, Justice David Lillehaug began with an overview of the governing principals of statutory interpretation, acknowledging there are two reasonable dictionary definitions of a “parent” (“lawful” and “biological”).

The Supreme Court ultimately invoked the canon of in pari materia, allowing two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language. The court also reviewed the relevant history of the name change statute.

As to statutory history, Lillehaug noted that “there is no signal that the Legislature’s intent was to give notice to biological fathers who were not legal fathers.”

In the context of Mother’s case, the Supreme Court construed the name change statute together with Minnesota’s Parentage Act and birth registration statute.

Concerning the birth registration statute, Lillehaug reiterated that an application of Minn. Stat. sec. 144.215 results in a biological father’s inability to name a child absent marriage to the mother at the time of birth, or a signed recognition of parentage.

In Mother’s case, Lillehaug echoed the sentiment of Cleary’s dissent, noting that Mother’s children were born to an unmarried mother without a recognition of parentage – or even a presumption of paternity on the part of the biological father.

According to Justice Lillehaug, even if father had held the children out as his own, triggering a presumption of parentage under Minn. Stat. sec. 257.55, Subd. 1(d), that presumption “cannot apply at the time of birth.” (Emphasis in original).

Consequently, he opined, Mother “had the right at the time of each child’s birth, as the biological mother, to decide whether [biological father’s] name should appear on the birth record.

The majority suggested that “it stands to reason that if, in naming the children, Mother had no legal obligation to involve the biological father because he was not a legal parent, [Mother] should not have to give the biological father notice of her desire to change the very names she chose.”

As to the Parentage Act, Lillehaug suggested that “contributing a sperm to an egg is not enough…one must have a ‘parent and child’ relationship.” Because no such relationship was established between the children and the biological father, Mother was deemed the sole legal parent of her children.

In dissenting, Justice G. Barry Anderson (joined by Chief Justice Lorie Gildea) opined that the name change statute unambiguously requires that “both [biological] parents” receive notice of a petition to change the names of their children.

Lillehaug countered that “if the dissent were correct, a male in a one-night encounter would be entitled to notice 15 years later, even if the child did not bear his name or even know him…[and] by contrast, a loving, supportive adoptive father whose name the child had born for 15 years would have no right to notice. Neither result can be what the 1951 Legislature intended.”

Of course, times have changed. Anderson raised a valid point in his dissent, implicitly suggesting that it may be time for the Legislature to revisit this issue.

The name change statute is just the tip of the iceberg. All of the statutes that pertain to the rights of an unwed biological father are due for an overhaul. Norms have changed.

The Uniform Parentage Act was amended several years ago, but Minnesota has yet to adopt its most recent incarnation. Moreover, Minnesota’s paternity laws, in present form, continue to deprive loving, but unwed, fathers with the right to spend time with their children absent a court order.

The JMM decision now informs us that absent a recognition of parentage executed contemporaneously with a child’s birth, a biological father has no rights surrounding the name of his child. With approximately one third of all children born outside of a marital relationship in 2020, it is time for the pertinent statutes to catch up.

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