In Re the Change of Name of Dunston , 18 N.C. App. 647 ( 1973 )

197 S.E.2d 560 (1973) 18 N.C. App. 647

In the Matter of the Change of Name of Peggie Lorain DUNSTON to Peggie Lorain Webb by her mother, Velvet Webb.

No. 7314SC403.

Court of Appeals of North Carolina.

July 11, 1973.

Atty. Gen., Robert Morgan by Asst. Atty Gen., James M. Blackburn, Raleigh, for the State.

William Woodward Webb, Durham, Legal Aid Society, for petitioner-appellant.

CAMPBELL, Judge.

G.S. § 101-2 provides that the Clerk of Superior Court may change the name of an applicant, upon 10 days' public notice of the filing of such application, and upon finding by the Clerk of good and sufficient reason for the change of name.

However, the name of a minor child may not be changed without the consent of both parents, if both be living, unless one of the parents has abandoned the minor child.

Abandonment is proved by filing with the Clerk a copy of an order of a court of competent jurisdiction adjudicating that such parent has abandoned such minor child.

In the event that a court of competent jurisdiction has not previously declared the child to be an abandoned child, the Clerk is authorized to determine whether an abandonment has taken place. Written notice of not less than 10 days to the parent alleged to have abandoned the child is required.

Petitioner contends that a stepparent is not a parent within the meaning of G.S. § 101-2 whose consent is required in order to effect a change of name. It has not been contended either in the lower court, or on appeal, that the child's natural father, whose identity is unknown, must consent to the name change.

It would appear that G.S. § 101-2 was not designed to require the consent of the natural father to a name change where the child was born out of wedlock. This is apparent from G.S. § 130-54.

G.S. § 130-54 provides that when a child is born out of wedlock, the last name of the child shall be the same as that of the mother, or the person caring for the child when requested by such person with the consent of the mother. If it has been adjudicated in a court of competent jurisdiction that a mother has abandoned her child, then the consent required of the mother by this section shall not be necessary.

The issue, then, is whether G.S. § 101-2 requires the consent of the stepfather whose name the child wishes to adopt, or in the alternative, a finding of his abandonment of the stepchild.

G.S. § 101-2 speaks in terms of "parents", a father or mother. One is either a natural parent, or an adoptive parent. A stepfather is under no duty to support the children of his wife by a former marriage but can become so bound by placing himself in loco parentis to those children; he can become a parent only by adoption of the children born to his wife by a former marriage, or born out of wedlock, but not of his parentage.

G.S. § 101-2 contemplates only the situation where one natural or adoptive parent petitions for the change of name of a child, and the other parent stands to lose his name with respect to that child. It has no application to a stepfather.

Under G.S. § 130-54, a third person having care of an illegitimate child can petition to have the name of the child changed with only the consent of the child's natural mother. Where the natural mother petitions to change the name of her illegitimate child, the consent of no other person is logically required, as no other person has any "rights" inherent in that child's name.

We hold that neither the consent of a child's stepfather, nor a finding that the stepfather had abandoned that child is necessary in a petition by the natural mother of that child to have the child's name changed.

Reversed and remanded.

MORRIS and PARKER, JJ., concur.