PR 01210.026 Minnesota
A. PR 02-031 State Law Regulations Regarding Appearance of Father's Name on a Birth Certificate of a Nonmarital Child
DATE: February 13, 2002
To determine if there is written acknowledgment under section 216(h)(3) of the Act, this opinion provides the written consent/court order requirements of each State in Region V for entering a father's name on the BC of a nonmarital child, or showing the child's surname the same as the father's.
You have asked us to advise you of the current law for each state in Region V regarding the appearance of the father's name on the birth certificate of a nonmarital child. Specifically, you have asked us to determine whether state law requires 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. You have also asked us to determine whether state law requires the father's written consent or a court determination of paternity before the birth certificate can show the child's surname to be that of the father's. Our findings are as follows:
Section 144.215 of the Minnesota statutes provides that in any case in which paternity of a child is (a) determined by a court of competent jurisdiction, (b) a declaration of parentage is executed, or (c) a recognition of parentage is executed, the name of the father shall be entered on the birth record. While the law requires the father to be named on the birth certificate in these situations, it does not expressly exclude naming a putative father on the birth certificate in other circumstances. Therefore, we would recommend that in Minnesota cases, the Agency request evidence of either a court determination of paternity or a declaration or recognition of parentage, even where the birth certificate names the putative father. MINN. STAT. ANN. § 144.215, Subdivision 3 (West 2001).
A declaration of parentage is a writing signed by both the child's mother and father, on or before August 1, 1995, which declares and acknowledges under oath that they are the biological parents of the child. MINN. STAT. ANN. § 257.34, Subd. 1; MINN. STAT. ANN. § 257.34, Subd. 4. Before, on or after August 1, 1995, the mother and father of a nonmarital child can sign a recognition of parentage. MINN. STAT. ANN. § 257.34, Subd. 4. Like the declaration of parentage, the recognition of parentage is a writing signed by the mother and father of a child born out of wedlock which states and acknowledges under oath that they are the biological parents of the child and wish to be recognized as the biological parents. MINN. STAT. ANN. § 257.75, Subd. 1. A man is presumed to be the biological father of the child if he and the child's mother sign a declaration of parentage and file it with the state registrar of vital statistics or if he and the child's mother have executed a recognition of parentage. MINN. STAT. ANN. § 257.55, Subd. 1(e),(g)-(i).
As for surnames, in any case in which the paternity of a child is determined by a court and if the court declares the name of the child, that name must be entered on the child's birth certificate. MINN. STAT. ANN. § 144.215, Subd. 3; see also MINN. STAT. ANN. § 257.66, Subd. 2 (if the judgment of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued). If the court order does not declare the name of the child, or if there is no court order, then upon the request of both parents in writing, the surname of the child is designated by both parents. MINN. STAT. ANN. § 144.215, Subd. 3. However, state law does not address the situation where the court does not declare a surname and there is no acknowledging father to designate a name. It is unclear whether under those circumstances, the mother could designate a surname other than her own. Absent a state law that precludes this, we recommend that even where the birth certificate shows the child's surname to be that of the putative father's, the Agency should request evidence of a court determination of paternity or evidence that the putative father acknowledged the child and designated the name.
These are the current requirements for the appearance of the father's name and the child's surname on the birth certificate of a nonmarital child in each of the six states in our region. As requested, we have appended a chart detailing the above information and effective dates for your use.
Thomas W. C~
Regional Chief Counsel
Kathryn A. B~
Assistant Regional Counsel
|Written Consent Father's Name||No — 8/1/80|
|Court Order Father's Name||No — 3/29/78|
|Written Consent Child's Surname||No — 8/1/80|
|Court Order Child's Surname||No — 3/29/78|