The law on this issue is succinctly stated in Bardin v. State, Dep't of Revenue, 720 So.2d 609 (Fla. 1st DCA 1998), as follows: This court, in Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987), held that the change of a child's surname to that of the father, based only on a finding of paternity, is error. The Collinsworth court explained that a child's surname may be modified "`only where the record affirmatively shows that such change is required for the welfare of the minor.
The trial court changed the child's legal surname from Bardin to Bailey despite the fact that Bailey offered no evidence that the change was in the best interests of the child. This court, in Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987), held that the change of a child's surname to that of the father, based only on a finding of paternity, is error. The Collinsworth court explained that a child's surname may be modified "`only where the record affirmatively shows that such change is required for the welfare of the minor.
As an initial matter, the parents are correct that the cases which the circuit court cited in its order denying their petition were factually distinguishable, because those were dissolution and paternity cases involving opposed petitions to change a child's last name, and not unopposed petitions to change a child's first name, as in this case. See, e.g., Collinsworth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987) (the trial court's paternity judgment did not permit changing the child's last name from the mother's last name to the father's last name unless the record affirmatively showed that such change was required for the child's welfare); Lazow v. Lazow, 147 So.2d 12, 14 (Fla. 3d DCA 1962) (the possible adverse effect on the relationship between a father and his child was a valid ground for refusing to change the child's last name from his father's last name to his mother's maiden name). However, the circuit court's order appears to have cited the foregoing cases not based on their facts, but based on the general proposition that a court should deny a name change petition which contains only conclusory assertions and does not affirmatively show how the name change would be in the child's best interests.
A name change is proper "only where the record affirmatively shows that such change is required for the welfare of the minor." Collinsworth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987) (quoting Lazow v. Lazow, 147 So.2d 12, 13 (Fla. 3d DCA 1962) ). If only conclusory assertions are provided in the record, "the issue should ordinarily be resolved against the party having the burden of proof, the proponent of change." Collinsworth, 508 So.2d at 747 ; Bardin v. State, Dep't of Revenue, 720 So.2d 609, 610 (Fla. 1st DCA 1998). A name change may not be based solely on a finding of paternity.
[Hutcheson v. Taylor, 43 So.3d 921,] 922 [ (Fla. 1st DCA 2010) ]. Under the best interest standard, the record must affirmatively show that a name change is required for the welfare of the child. Collinsworth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987) (โThis standard, emphasizing best interest of the child rather than parents, would accord effect to the same factors governing custody.โ); Levine v. Best, 595 So.2d 278 (Fla. 3d DCA 1992). None of the arguments presented to the trial court here support a finding that a name change would be in the minor child's best interest or required for his welfare.
Instead, a child's surname may be modified "only where the record affirmatively shows that such change is required for the welfare of the minor." Id.quoting Collinsworth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987); see also Lazow v. Lazow, 147 So.2d 12 (Fla. 3d DCA 1962); McKay v. Haikey, 860 So.2d 1046 (Fla. 5th DCA 2003); and Durham v. McNair, 659 So.2d 1291 (Fla. 5th DCA 1995). The discretion of a trial judge over a request for a change in name "must be exercised on the basis of some evidence other than the parties' conclusory assertions."
On appeal, it is Appellant's burden to show the trial court abused its discretion by ordering the name change and modifying the backup care provisions. Collins-worth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987); Hastings v. Rigsbee, 875 So.2d 772 (Fla. 2d DCA 2004). Here, the record reflects the trial court considered factors in addition to paternity when ordering the name change.
But, the mere fact that McNair happens to be the father of the child does not automatically entitle him to insist the child be given his surname. See Levine v. Best, 595 So.2d 278 (Fla. 3d DCA 1992); Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987). ยง 382.013(6)(c), Fla. Stat. (1993).
The standard to applied in changing a child's name is the best interest standard. See Collingsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987); Azzara v. Waller, 495 So.2d 277 (Fla. 2d DCA 1986); Arnett v. Matthews, 259 So.2d 535 (Fla. 1st DCA 1972); Lazow v. Lazow, 147 So.2d 12 (Fla. 3d DCA 1962). In Lazow, 147 So.2d at 12, the court applied a best interest test and concluded that a minor's name may be changed only where the record affirmatively shows that such change is required for the minor's welfare.
Without citing Allen, the First and Fourth District Courts of appeal have held contrary to Allen and applied the shared parental responsibility law (section 61.13) to custody battles between unmarried parents. Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987); Barnes v. Frazier, 509 So.2d 401 (Fla. 5th DCA 1987); In Re: A.J.R., 440 So.2d 619 (Fla. 1st DCA 1983). The court in Barnes held: