The mum wants to change her son's surname so he doesn't share a name with the man who gave him lifelong injuries.
The case of a mum trying to change her son’s surname after his dad left him brain-damaged has prompted a warning to parents who may not know how much control an abuser still has over their kids.
Even sole carers who have had no contact with their child’s other parent for years technically still have to consult them over decisions such as where they can live, medical treatment and their education, a family lawyer said.
One Tauranga mother recently hit such a roadblock after trying to change her 9-year-old son’s surname, which he shares with his father.
In 2013, the boy’s father shook him during a nighttime wake-up when the child was only 29 days old, causing permanent brain damage. The boy now has a developmental age of about 2 years and 6 months.
The father has had no contact with the child in nearly a decade and is in prison, but the mother was told by the court she must notify the father of her application and give him a say in the decision on whether his surname can be changed.
“You might say the law possibly doesn’t protect people with primary care as much as it could in relation to some guardianship issues,” said senior family lawyer Jeremy Sutton.
“It just demonstrates how difficult it is to make a decision on your own on something like a name,” he said.
“It’s a significant thing to change someone’s name because it’s a sense of identity and culture . . . it’s all about the welfare and the best interests of the child.”
It would be “really unusual” for a court to grant the application without seeking the views of the other parent.
“Judges are really reluctant to change a name unless there’s a good reason to change a name,” Sutton said.
“When people talk about a clean break from a relationship, that may be a clean break physically but there are still some aspects that are continuing.”
Other things people might not realise their children’s other parent may have control over include the location they live in, overseas travel, medical treatments and education.
Technically, a parent in the Tauranga mother’s situation would still need to seek permission from the father to move to a different city.
Yesterday an Internal Affairs spokesperson said a parent could apply to the court to have the other parent removed as a legal guardian. Abuse of a child and criminal convictions are some of the factors the court takes into account.
But Sutton said it was very rare for someone’s guardianship rights to be “eroded or lost”, and there were only a handful of applications each year to remove someone as a guardian.
“I have never been able to remove a guardian and my colleagues in family law have been the same,” he said, noting the right to be a guardian was a “fundamental one”.
Having some type of automatic removal of guardianship upon conviction of serious offending against the child would raise issues of its own, he said.
“The taking away of guardianship rights is seen as an extreme step . . . it is seen as positive for children to preserve their relationship with both their parents.
“It is easier to have a guardian appointed for a particular purpose or to exclude a guardian from a particular decision. This is a more limiting role. An example may be the decision around whether to have a Covid vaccination or not for a child may be left to one party.”
The Justice Minister has been contacted for comment.
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Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.