See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); DeCosta v. North Broward Hospital District, 497 So.2d 1282 (Fla. 4th DCA 1986). Recently in Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987), our sister court held the Shared Parental Responsibility law applicable to a non-married couple contesting the custody of their illegitimate offspring. In Collinsworth, however, the mother was given primary residential custody, and therefore no finding of unfitness would have been required.
01(3), a court, exercising jurisdiction in a filiation proceeding, has the discretionary power to decide whether a child's surname shall be changed from the legal surname of the child's mother to the surname of the child's father. In a filiation proceeding, a court, in deciding whether a child's surname should be changed from the mother's surname to the father's surname, must consider the best interests of the child regarding a change of name. Beyah v. Shelton, 231 Va. 432, 344 S.E.2d 909 (1986); Daves v. Nastos, 105 Wn.2d 24, 711 P.2d 314 (1985); Collinsworth v. O'Connell, 508 So.2d 744 (Fla. App. 1987). Although designation of a child's surname arose out of a proceeding to dissolve a marriage, this court, in Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381 (1982), adopted the "best interests of the child" as the correct criterion or standard applicable to a parental dispute concerning the surname of a child affected by the dissolution.
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:
Stepp, 520 So.2d at 316. We agree with Barnes and Stepp and note that our recent decision in Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987), while not involving the exact issue before us, is consistent with the spirit of the holdings in Barnes and Stepp.Collinsworth held the shared parental responsibility law applicable to a non-married couple contesting the custody of their illegitimate offspring.
Finally, the burden is on the party seeking the name change to prove, by clear and compelling evidence, that the substantial welfare of the child necessitates a name change. See, e.g., Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974); Collinsworth v. O'Connell, 508 So.2d 744 (Fla.Dist.Ct.App. 1987). When judged by this standard, it is apparent that the district court's order cannot stand.
198 So.2d at 375. Florida courts have also recognized that the shared responsibility statute, section 61.13, Florida Statutes (1989), applies to both legitimate and illegitimate children, and that fathers of illegitimate children have the same rights with respect to their illegitimate children as legitimate fathers have with respect to their legitimate children, Collinsworth v. O'Connell, 508 So.2d 744, 746 (Fla. 1st DCA 1987); Brown v. Bray, 300 So.2d 668, 669 (Fla. 1974); Stepp v. Stepp, 520 So.2d 314 (Fla. 2d DCA 1988), unless those rights have been waived or legally terminated by a court. Section 61.13(2)(b)2.a provides, and Florida courts have held, that in custody proceedings a trial court must order that the parental responsibility for a minor child be shared, unless the court finds that shared parental responsibility would be detrimental to the child.
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.
See, Application of Januskiewicz, 105 N.M. 306, 731 P.2d 1350 (1986). The following jurisdictions apply the "best interest of the child" standard when considering petitions to change the name of minor children: Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277 (1975); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); In re: Schiffman's Marriage, 28 Cal.3d 640, 620 P.2d 579, 169 Cal.Rptr. 918 (1980); D.K.W. v. J.L.B., 807 P.2d 1222 (Colo.App. 1990); Don v. Don, 142 Conn. 309, 114 A.2d 203 (1955); Degerberg v. McCormick, 41 Del. Ch. 46, 187 A.2d 436 (1963); Collinsworth v. O'Connell, 508 So.2d 744 (Fla.Dist.Ct.App. 1987); Fulghum v. Paul, 229 Ga. 463, 192 S.E.2d 376 (1972); In re: Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 465 N.E.2d 85 (1984); Petition of Meyer, 471 N.E.2d 718 (Ind.Ct.App. 1984); Matter of Morehead, 10 Kan. App. 2d 625, 706 P.2d 480 (1985); Likins v. Logsdon, 793 S.W.2d 118 (Ky. 1990); Webber v. Webber, 167 So.2d 519 (La.Ct.App. 1964); In re: Reben, 342 A.2d 688 (Me. 1975); Hardy v. Hardy, 269 Md. 412, 306 A.2d 244 (1973); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758 (1956); Rappleye v. Rappleye, 183 Mich. App. 396, 454 N.W.2d 231 (1990); Jacobs v. Jacobs, 309 N.W.2d 303 (Minn. 1981); Marshall v. Marshall, 230 Miss. 719, 93 So.2d 822 (1957); R.K.-T.S. by V.T. v. R.S., 819 S.W.2d 749 (Mo.Ct.App. 1991); Matter of Iverson, 241 Mont. 140, 786 P.2d 1 (1990); In re: Andrews by and through Andrews, 235 Neb. 170, 454 N.W.2d 488 (1990); Magiera v. Luera, 106 Nev. 775, 802 P.2d 6 (1990); Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (1978); Application of Rossell v. Yacono, 196
However, when reviewed in the context of the entire statute, it is clear that subsection (5)(b) addresses the selection of surnames only in the absence of paternity litigation. Cf. Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987). Once paternity is established by the court, subsection (6)(c) governs the entry of the appropriate name on the birth certificate:
We reject Appellant's argument that the court was required to award her custody unless she is found to be unfit. The shared parental responsibility law, adopted in 1982, is applicable to non-married parents notwithstanding that it does not specifically so provide. Stepp v. Stepp, 520 So.2d 314 (Fla. 2d DCA 1988); In re S.M.H., 531 So.2d 228 (Fla. 1st DCA 1988); Barnes v. Frazier, 509 So.2d 401, 402 (Fla. 5th DCA 1987); Collinsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA 1987). Contrary to Appellant's argument, this Court has not previously rejected the application of shared parental responsibility to non-married parents. We have considered our opinion in Allen v. Childress, 448 So.2d 1220 (Fla. 4th DCA 1984), and deem it inapposite.