NSW Father has Sole Custody of Children - Still Need Mother's Consent?

[Chloe Burgess]

Hi,

My husband was given "sole parental responsibility" of his son in Feb 2013. We would like to change his surname but the NSW BDM form states a specific court order is required if we cannot obtain consent from his biological mother. It states that an "an order of parental custody/responsibility will not be accepted"

How can this be if we have sole custody of children? His birth mother does not have any contact orders and we have not seen or heard from her since our final hearing.

It seems ridiculous that we must apply for more orders for a name change.

Any help is much appreciated.

 

[sammy01]

I'd have thought the court orders would have been adequate.... Pity you didn't ask for it to be dealt with a the time. Look schools with often accept a name change via a verbal request... You could change it in every respect except for the legal technicallity...

My concern is that you will struggle to get him a passport for the same reason??? I'd be trying to organise an appointment with the registrar of BDM and try to motivate them to see the common sense reality here. IF that fails then it is court. Self represent and it will only cost a few hundred $$$

 

[Chloe Burgess]

To be honest, we did ask the magistrate if he could add this as orders at the time and his responce was that it wasnt necessary as our order covers all major decisions. So frustrating. Maybe our order might be adequate? I'm thinking we might just do the application and hope for the best. Other states bdm says "sole" is enough. I'm hoping it may be worded badly for nsw?

Funnily enough, the info I have found for a passport says anyone with parental responsibility must consent. She technically doesnt have any parental responsibility right?
Its all so confusing. Thanks for replying.

 

[Bickless]

Hi there,

Just wondering how you went with change of name.

My daughter is 11 years old and wanting to change surname to mine. I've also had sole responsibility, I have spoken to BDM - they state that I need a separate order from the court to change her last name, which is a joke.

I was arguing the fact that sole responsibility does included major decisions. I got so fed up with them i contacted my solicitor to clarify for me, which he said that sole responsibility can make that decision for the child.

Now I'm waiting for an appointment with BDM to go there in personal with my court order. Let me know how you went.

 

[MartyK]

Unfortunately it can depend on the State you are in. If worst came to worst you could always make an application to the Court, just for this, seeking an order such as...

That the Court hereby directs the department of Births, Deaths and Marriages to change the name of the child (child's name) born on (date of birth) to the name of (child's new name).

 

[Tim W]

We would like to change his surname....

What does the child want?

 

[Bickless]

My daughter would like my surname. Which she has use all her life.She also goes by my surname at school. I'm enrolling her into high school which they have allowed her to use my surname for her enrolment. But once she is 16 it will become complicated as her HSC will go under my surname but her birth certificate will reflect her fathers surname. The principal at the high school has stated I have till she is 16 to legally change it.

 

[Tim W]

How can this be if we have sole custody of children?

It's imposed on the Registrar by section 28 of the Births Deaths and Marriages Act 1995.

It seems ridiculous that we must apply for more orders for a name change.

It's in part to control parents who would otherwise change the child's name more often than is reasonable,
or who do it as a way to take a swipe at the other parent.
It's also to provide a degree of stability for the child.

Any help is much appreciated.

You have pretty much only two choices. Either get the consent of the other parent, or get an order.
Even in applying for an order, you will still need to show that you made exhaustive attempts to contact the other parent, and that you could not.
Note that going to a lot of trouble to find them, only to have them refuse to agree to the name change, is still a "no".

The Registry will help you as far as the law allows them to.
Take a little comfort in that you will hardly be the first person to find themselves in these circumstances.