TN 1 (04-06)

PR 01210.019 Kansas

A. PR 05-163 Review of Law for Each State in Region VII Regarding Entry of Father's Name or Use of Father's Surname on Birth Certificate of a Nonmarital Child

DATE: May 18, 2005

1. SYLLABUS

In Iowa, Kansas, Missouri, and Nebraska written consent or a court order is required for a father's name to appear on a non-marital child's birth certificate. This law has been in effect since January 1, 1970 in Iowa, since July 1, 1963 in Kansas, since January 1, 1984 in Missouri and since January 1, 1977 in Nebraska.

No court order or written consent is required in order to show the child's surname as identical to the alleged father's in these States.

2. OPINION

You requested a review of the law for each State in Region VII regarding both the appearance of the father's name and the entry of the child's surname identical to the father's on the birth certificate of a nonmarital child. Specifically, you requested a determination as to whether the laws of each State require either the father's written consent or a court determination of paternity before the father's name can be entered on the birth certificate of a child born out of wedlock or before the child may be given the surname of the father. In response to your request, we reviewed the relevant State laws and contacted the Bureaus of Vital Statistics of each State in this Region.

If the father's name appears on the birth certificate of a child born outside marriage in Iowa, it can presumed beginning on January 1, 1970, that the father gave written consent or that a determination of paternity was made by a court. See Iowa Code §§ 144.13.3. Iowa statutes provide that, if a mother was not married at the time of conception, birth, or anytime in between, the name of the father shall not be entered on a birth certificate unless paternity has been legally established in one of several ways. See Iowa Code § 144.13.3 (2005); see also Iowa Code § 252A.3.8. Paternity may be established by a court order or administrative order or by an affidavit of paternity executed on or after July 1, 1993. See Iowa Code §§ 252A.3.8.a and 252A.3.8.c. Between January 1, 1970 and June 30, 1993, the name of the father of a child born outside marriage was not to be entered on the certificate of birth "without the written consent of the mother and the person to be named as the father, unless a determination of paternity has been made by a court of competent jurisdiction." See Iowa Code § 144.13.4 (1992).

In Kansas, the father's written consent or a court determination of paternity can be presumed with the appearance of the father's name on the birth certificate of a child born outside marriage beginning on July 1, 1963. See Kan. Stat. Ann. § 65-2409. In Kansas, the father's name can appear on the birth certificate of a nonmarital child either through the hospital based program for voluntary acknowledgment of paternity or by amending the child's birth certificate. In the Kansas hospital based program, the name of the father shall not be entered on the birth certificate without the written consent of the mother and the father unless a court determination of paternity has been made. See Kan. Stat. Ann. § 65-2409a(c) and 65-2409 (2005); see also Kan. Stat. Ann. §§ 38-1137 and 38-1138. The child's birth certificate may be amended to add the name of the father by an action under the Kansas Parentage Act if the parents appear before a judge and execute affidavits of voluntary acknowledgment of parentage. See Kan. Stat. Ann. § 38-1130; see also Kan. Stat. Ann. § 38-1138.

If the father's name appears on the birth certificate of a child known to be born outside marriage in Missouri on or after January 1, 1984, it can be presumed that paternity was determined by a court order or administrative order of the division of child support enforcement or that the parents completed an affidavit of acknowledgment of paternity. See Mo. Rev. Stat. § 193.085.7. In Missouri, the father's name can appear on the birth certificate of a nonmarital child in three ways. First, the birth certificate of a child born out of wedlock may show the father's name if both parents complete an acknowledgment of paternity affidavit. See Mo. Rev. Stat. § 193.085.7 (2004)1 ; see also Mo. Rev. Stat. §§ 193.087.1(1) and 193.215.6 (allowing for amendment of birth certificate upon receipt of acknowledgment of paternity affidavit). The father's name may also be entered on the birth certificate of a nonmarital child in Missouri if paternity was determined by a court. See Mo. Rev. Stat. §§ 193.085.6 and 193.085.7. Last, the birth certificate of a child born out of wedlock may show the father's name if paternity was determined by an administrative order of the division of child support enforcement. See Mo. Rev. Stat. § 193.085.7; see also Mo. Rev. Stat. § 454.485.1 (providing the circumstances under which an administrative order establishing paternity may be entered) and § 210.822 (listing presumptions of paternity). In the State of Missouri, the law as it presently reads became effective on July 1, 1997. Between January 1, 1984 and June 30, 1997, Missouri statutes provided that the name of the father would be entered on the certificate of birth if paternity was determined by a court. See Mo. Rev. Stat. § 193.085.6 (1984).

If the father's name appears on the birth certificate of a child known to be born outside marriage in Nebraska on or after January 1, 1977, it can be presumed the father provided written consent or that a determination of paternity was made by a court. See Neb. Rev. Stat. §§ 71-640-01(2) and 71-640-02. Nebraska statutes provide that, "If the mother was not married at the time of either conception or birth or at any time between conception and birth, the name of the father shall not be entered on the certificate without the written consent of the mother and the person named as the father." Neb. Rev. Stat. § 71-640.01(2)(2005); see also Neb. Rev. Stat. § 71-640.02. The only other manner in which the name of the father of a nonmarital child may be entered on the birth certificate in Nebraska is in accordance with the finding of a court that has determined the paternity of the child. See Neb. Rev. Stat. § 71-640.01(3); see also Neb. Rev. Stat. § 71-640.02. The law with regard to the entry of the father's name on the birth certificate has remained the same since its inception in 1977.2

You also asked us to determine whether the use of the father's surname on the birth certificate of a child born out of wedlock establishes the father's written consent or a court determination of paternity. After reviewing the relevant State laws and contacting the Bureaus of Vital Statistics of each State in this Region, we determined that the surname of the child is not a reliable indicator of the father's written consent or a court order establishing paternity.

Iowa statutes provide that, "Upon written request of the parents, the surname of the child may be changed on the certificate to that of the father." Iowa Code § 144.40. However, there is no requirement that the child be given the surname of the father. As a result, the surname of the child is not a reliable indicator of paternity in Iowa.

There is no specific provision of Kansas law pertaining to the designation of the surname of a nonmarital child. However, at common law, a person may use any name desired as long as no fraudulent purpose is involved. See Matter of Marriage of Killman, 955 P.2d 1228, 1232 (D. Kan. 1998); Kan. Stat. Ann. § 77-109 (common law to remain in effect). Therefore, neither the father's consent nor a court determination of paternity would be required before the birth certificate could show the child's surname to be that of the father's.

In Missouri, the surname of a child born outside of marriage is not a reliable indicator of the father's written consent or a court order establishing paternity. Missouri statutes provide that an acknowledgment of paternity affidavit includes "provisions to allow the parents to change the surname of the child and such surname shall be changed on the birth record if the parents elect to change the child's surname." Mo. Rev. Stat. § 193.215.6. However, there is no requirement as to what surname the child shall be given. Where paternity has been determined by a court, the child's surname will be entered on the birth certificate "pursuant to the finding and order of the court." Mo. Rev. Stat. § 193.085.6. However, absent a copy of the court order, the surname of the child is not a reliable indicator of paternity in Missouri.

In Nebraska, the surname of a child born outside of marriage is not a reliable indicator of the father's written consent or a court order establishing paternity. Nebraska statutes provide that, in the case of establishment of paternity by court order, "the surname of the child may be entered on the record the same as the surname of the father." Neb. Rev. Stat. § 71-640.03(1) (emphasis added). The statute further clarifies that, "The surname of the child shall be the parents' prerogative . . . ." Neb. Rev. Stat. § 71-640.03(2).3 Thus, the surname of the child is not a reliable indicator of paternity in Nebraska.

We have appended a chart detailing the above information and effective dates for each of the four States in Region VII for your use.

Frank V. S~ III
Chief Counsel, Region VII

By
Rhonda N~
Assistant Regional Counsel


Footnotes:

[1]

Legislation is pending in Missouri to make a minor revision to Mo. Rev. Stat. § 193.085.7. See S. 74, 93rd Gen. Assem. (Mo. 2005).

[2]

Changes were made to Neb. Rev. Stat. § 71-640.01 on April 19, 1994 to eliminate provisions relating to prescribed surnames on birth certificates, as discussed below. See 886, 93rd Leg., 2nd Sess. (Ne. 1994). A minor change was made to Neb. Rev. Stat. § 71-640.02 in 1997. See L. 307, 95th Leg., 1st Sess. (Ne. 1997). A minor change was made to Neb. Rev. Stat. § 71-640.01 on March 9, 2005. See L. 301,1st Sess. (Ne. 2005).

[3]

Prior to April 19, 1994, Nebraska statutes contained provisions that prescribed surnames on birth certificates of children born outside of marriage based on whether paternity had been determined. See Neb. Rev. Stat. §§ 71-640.01(2)(1993) and 71-640.02(1993). Even when this was the case, the surname was not a reliable indicator of paternity, as it was only mandatory that the child's surname be the same as the father's under certain circumstances. See Neb. Rev. Stat. § 71-640.01(2)(1993).


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PR 01210.019 - Kansas - 05/05/2011
Batch run: 05/05/2011
Rev:05/05/2011