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Birmingham Bar Associations Bulletin Summer 2015

Family Law G. R. Fernambucq and Joseph Callaway Boyd, Boyd, Fernambucq, Dunn & Fann, P.C. UPDATE: Name Change of a Minor In State Farm Fire and Cas. Co. v. Bren, May 9, 2014, the Supreme Court of Alabama held that the Mobile County Probate Court lacked jurisdiction to enter an order on a father’s petition to change the name of a minor child when the petition was not part of a legitimation action. Russell v. Fuqua, No. 1120957, 2014 Ala. LEXIS 66 (Ala. May 9, 2014). Since the time we first wrote about Russell v. Fuqua, both lawyers and judges have spent significant time discussing the impact of the case, amending forms, and readjusting their traditional beliefs that probate court is the court from which to obtain orders for a name change. Upon rehearing, the court issued an opinion on March 20, 2015, that provided clarity and guidance as to the probate court’s jurisdiction to change the name of a minor child. Russell v. Fuqua, No. 1120957, 2015 Ala. LEXIS 39 (Ala. March 20, 2015). The original decision from the Supreme Court of Alabama might have been read to suggest that Alabama probate courts lacked jurisdiction to change the name of any minor children not part of a legitimation proceeding. At first glance, in May of 2014, the court’s reasoning appeared sound. The jurisdiction of the probate court “is limited to the matters submitted to them by statute,” and the court noted only two statutes vesting probate courts with jurisdiction to change the name. Section 26-11-3 of the Alabama Code allows the probate court to change the name of a minor child subject to a legitimation action, and §12-13-1(b) (10) allows the probate court to change the name of “any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed.” Although the court characterized §12-13- change the name of a minor child upon a father’s petition outside of a legitimation proceeding. However, this later opinion indicates that the probate court’s jurisdiction pursuant to §12-13-1(b)(10) may not be limited to petitions for name changes by adults. Although the statute was not applicable in the present case, the court noted that “the statute makes reference to the filing of a declaration by a ‘person,’ a term that in itself is not limited to adults.” Through this dicta, the court notes that “for purposes of this case, we may assume, without deciding, that this statute also gives jurisdiction to a probate court over a petition and declaration for change of a minor’s name filed on behalf of the minor by the minor’s next friend, see Rule 17 Ala. R. Civ. P., provided that the petition does not implicate custodial issues falling within the jurisdiction of the circuit court.” Although the court “assumes, without deciding” that the probate court has jurisdiction over a petition for the change of name on behalf of a minor child when the petition does not implicate custodial issues, the court appears to be suggesting that the probate court likely has jurisdiction over a minor child’s petition for name change that does not implicate custodial issues. Accordingly, not all name changes for minors outside of legitimation proceedings must be filed with the circuit court. Under the right set of circumstances, a name change of a minor can occur in probate court. G Suzanne Smith Susan Smith Susie Smith Susie Watson Scottie Wilson 1(b)(10) as only giving the probate court jurisdiction over an adult’s request for a name change, neither statute granted the probate court jurisdiction to change the name of a child on the father’s petition, which was not part of a legitimation proceeding. Upon rehearing, the May 9, 2014, opinion was withdrawn and substituted for the opinion of March 20, 2015. Russell v. Fuqua, No: 1120957, 2015 Ala. LEXIS 39 (Ala. March 20, 2015). The holding of the case remains the same, that a probate court lacks jurisdiction to 20 Birmingham Bar Association


Birmingham Bar Associations Bulletin Summer 2015
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