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Changing child's name when absent ex says no?

(8 Posts)
BertieBotts Sat 19-Sep-15 20:01:29

Does anybody know what would be the best thing to do here?

We live in Germany. I've been married 1.5 years and have DS, 6, from a previous relationship. XP has not seen or made contact with DS for four years. We were never married.

DS has been using my maiden name since nursery and since we moved to Germany 2 years ago, we decided to use DH's name when we enrolled him in Kindergarten with the long term plan that DH would adopt him.

Since then, we actually looked into the adoption thing, and it turns out it's far more complicated than expected and I don't know if it's going to be possible or not. So I thought it best to sit and wait a while until XP's absence had been significant, since at that time it was only two years.

Now DS has started school and the law here forces him to use his official name at school. So I thought perhaps it's an idea to test the waters by asking XP's permission for a deed poll to change DS' name. I don't have any contact details for him, but I thought I'd ask his mother, as she does. So I did, and she got back to me saying he said no.

So there we go, plan A is over, not going to be that easy.

Now I don't know what to do next.

I could fly over, meet XP and try to appeal to his better nature.

We could apply for a court order in order to change DS' name citing XP's lack of contact (and lack of maintenance for the last 5 years) as a reason to override him. But it sounds like we might be asked to go through mediation, unsure how that would work when we live abroad. The other thing is that this doesn't get us any closer to adoption, so it might be a bit of a waste of time - a court order allowing us to change his name doesn't automatically write him out of any other decisions (DH thought that it might.)

We could push straight for adoption, citing the lack of relationship between XP and DS as a reason to disregard his consent. I understand that through the UK system this is a bit of a pain in the arse involving being investigated just as any adoptive couple would, and I assume would involve us living in the UK for a certain period of time (does anybody know?) - if this is months rather than weeks then it would be prohibitive in terms of cost and time off work needed.

For step-parent adoption through the German system (which seems pretty common) it appears we still need XP's consent and I don't know if we could disregard this from lack of contact - would probably have to meet with a lawyer here for advice.

I could write to XP and ask him that if he is not willing to let DS change his name whether he could actually start having involvement in his life including paying maintenance, which I have never chased him for. But TBH, I don't know if we could actually open a CMS claim from here anyway.

Collaborate Sat 19-Sep-15 20:56:03

Any dispute over the welfare of a child (which includes change of name) will be determined by a court in the child's country of habitual residence. You therefore need to get advice from a German lawyer.

BertieBotts Sat 19-Sep-15 22:47:23

Ah interesting, I didn't realise. I don't think it's a thing to change names here, though.

babybarrister Sun 20-Sep-15 10:09:26

Actually I am afraid that Collaborate may be wrong (just this time!) in relation to a name change as the general jurisdictional rules in Brussels II Revised which cover children issues do not in fact cover name changes (pedant alert! ).

you would therefore have to get advice whether under German domestic law they would be happy to allow an application for name change for a UK national - they might well be but I do not know ....

BertieBotts Sun 20-Sep-15 11:09:53

Okay. I think that we can do the deed poll from living in DE to do through UK - when i looked into it before this seemed to be the case, but you need either the other parent's consent or a court order.

babybarrister Sun 20-Sep-15 11:14:00

I would take some German legal advice as English law would require to apply to the English court and obtain an order - you cannot do it by way of a Deed poll ....

Collaborate Sun 20-Sep-15 11:50:38

I bow to BB's superior knowledge!

BertieBotts Sun 20-Sep-15 14:51:01

Yes I need a court order to get the deed poll. Is that right? Or the court order would allow the name change without deed poll?

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