Question: Unlawful Name Change

[kcjean]

I love this site and am glad I finally ran across it.  Ironically, I did so much pro se stuff for my husband (& for myself but mine wasn't messy) that I landed a job as a legal assistant.  Of course in legal aid we did not cover criminal law so I am stumped on something.
Husband's ex decided she wanted her new husband to be dad of their 5 year old (other child with us, still court proceedings, ugh)  She changed her name on school records etc to reflect stepfather and while we are preparing a motion for custody and amendments right now, it seems that unlawful name change is a criminal not a civil issue.
I found a small section in the Virginia Criminal Code on this but no info on what we need to do legally.  His daughter does not even know he is the father (paternity done) and he is not allowed to speak to or see her.
Do you know where I need to go to find the forms?  Already sent FERPA letters to schools which we think she is at but mom told them her husband adopted the child and they are not cooperating yet.  Hopefully the FERPA letter will straighten this out.
KC

[socrateaser]

>I love this site and am glad I finally ran across it.
>Ironically, I did so much pro se stuff for my husband (& for
>myself but mine wasn't messy) that I landed a job as a legal
>assistant.  Of course in legal aid we did not cover criminal
>law so I am stumped on something.
>Husband's ex decided she wanted her new husband to be dad of
>their 5 year old (other child with us, still court
>proceedings, ugh)  She changed her name on school records etc
>to reflect stepfather and while we are preparing a motion for
>custody and amendments right now, it seems that unlawful name
>change is a criminal not a civil issue.
>I found a small section in the Virginia Criminal Code on this
>but no info on what we need to do legally.  His daughter does
>not even know he is the father (paternity done) and he is not
>allowed to speak to or see her.
>Do you know where I need to go to find the forms?  Already
>sent FERPA letters to schools which we think she is at but mom
>told them her husband adopted the child and they are not
>cooperating yet.  Hopefully the FERPA letter will straighten
>this out.

Post the penal statute in question so I can read it, please.

[kcjean]

I love this site and am glad I finally ran across it.  Ironically, I did so much pro se stuff for my husband (& for myself but mine wasn't messy) that I landed a job as a legal assistant.  Of course in legal aid we did not cover criminal law so I am stumped on something.
Husband's ex decided she wanted her new husband to be dad of their 5 year old (other child with us, still court proceedings, ugh)  She changed her name on school records etc to reflect stepfather and while we are preparing a motion for custody and amendments right now, it seems that unlawful name change is a criminal not a civil issue.
I found a small section in the Virginia Criminal Code on this but no info on what we need to do legally.  His daughter does not even know he is the father (paternity done) and he is not allowed to speak to or see her.
Do you know where I need to go to find the forms?  Already sent FERPA letters to schools which we think she is at but mom told them her husband adopted the child and they are not cooperating yet.  Hopefully the FERPA letter will straighten this out.
KC

[socrateaser]

>I love this site and am glad I finally ran across it.
>Ironically, I did so much pro se stuff for my husband (& for
>myself but mine wasn't messy) that I landed a job as a legal
>assistant.  Of course in legal aid we did not cover criminal
>law so I am stumped on something.
>Husband's ex decided she wanted her new husband to be dad of
>their 5 year old (other child with us, still court
>proceedings, ugh)  She changed her name on school records etc
>to reflect stepfather and while we are preparing a motion for
>custody and amendments right now, it seems that unlawful name
>change is a criminal not a civil issue.
>I found a small section in the Virginia Criminal Code on this
>but no info on what we need to do legally.  His daughter does
>not even know he is the father (paternity done) and he is not
>allowed to speak to or see her.
>Do you know where I need to go to find the forms?  Already
>sent FERPA letters to schools which we think she is at but mom
>told them her husband adopted the child and they are not
>cooperating yet.  Hopefully the FERPA letter will straighten
>this out.

Post the penal statute in question so I can read it, please.

[kcjean]

Sorry for the delay but I lost my password!
Here is what I found:

(US Code)
§ 18.2-504.1. Unlawful change of name; punishment.

If any person residing in this Commonwealth changes his name or assumes another name, unlawfully, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 8-577.1; 1956, c. 402; 1973, c. 401; 1976, c. 115; 1977, c. 624.

(VA Code)
§ 20-124.6.
Access to child's records.

Notwithstanding any other provision of law, neither parent, regardless of whether such parent has custody, shall be denied access to the academic, medical, hospital or other health records of that parent's minor child unless otherwise ordered by the court for good cause shown.

Hope this is at least in the right direction.
KC

[socrateaser]

Comments HACKded...see below:

>Sorry for the delay but I lost my password!
>Here is what I found:
>
>(US Code)
>§ 18.2-504.1. Unlawful change of name; punishment.
>
>If any person residing in this Commonwealth changes his name
>or assumes another name, unlawfully, he shall be guilty of a
>Class 3 misdemeanor.
>
>(Code 1950, § 8-577.1; 1956, c. 402; 1973, c. 401; 1976, c.
>115; 1977, c. 624.

Criminal statutes are strictly construed, and where there is ambiguity, lenity is in favor of the defendant. Here, your facts state that the mother has changed the child's name. The statute makes provides only for those who change their own name, and additionally, this requires them to change their name unlawfully. There is some question as to what "unlawful" would mean in this context, i.e., does it mean that the person changes their name in order to accomplish something that they could not otherwise lawfully accomplish, or simply that an assumption of an alias without a legal name change is unlawful. On balance, I do not believe that the statute is sufficiently precise to create criminal liability in the other parent for changing the child's last name on school records.

This doesn't mean that the change of name on those records is lawful, either, just that the statute doesn't "criminalize" changing a child's last name. It is very probably civilly unlawful to misrepresent the child's true name on an official government record, and there may be other criminal laws that impose liability for the misrepresentation.

The better question here is: what injury does this name change work on the child, the school and/or you? Is the intent to hide the child, or to obtain benefits to which the child/parent is not otherwise entitled? That's what you need to show the family court -- the other parent is affirmatively acting to destroy your relationship with the child -- which is not in the child's best interests.

>(VA Code)
>§ 20-124.6.
>Access to child's records.
>
>Notwithstanding any other provision of law, neither parent,
>regardless of whether such parent has custody, shall be denied
>access to the academic, medical, hospital or other health
>records of that parent's minor child unless otherwise ordered
>by the court for good cause shown.

This is a civil, not a criminal statute (from what I can see, anyway). So, if you would have been able to access the child's records, "but for" the mother's change of name, then that would be "negligence per se," which would show that the mother has breached her duty of care towards you, and so if you could show that the mother did the act (easily proved), and that the act caused you injury, then you could receive compensation for the injury.

Question here is, how were you injured, and is it worth any money?

As you can see, what appears clear cut on the surface, can be quite different after it's undergone a legal analysis.

[kcjean]

I am not new to law, only criminal law, but I also assumed that since it was intended for the person who changed their own name, it would not rightfully apply to the child since it is not the child who committed the offense, rather the parent.
I figured the state code was much more applicable and double checked my stuff.  In VA, the custody packets from the court directly state that neither parent is allowed to withold medical or educational records from the other parent, as stated in the code I cited so all we will have to do (I think) is file a show cause on that offense and just bring into light in our motion that the mother has changed the childs last name.  Hopefully, this will rectify the situation.  We really don't care whether she is punished or not.  We have gone that route so many times with the other child that any wish for revenge has long since died.  It is useless and time consuming and with a person who has such a vendetta to cause grief, it is easier to not do so. We will get our point across and it will hopefully be resolved, albeit one issue at a time with her.
Thank you for the insight though.  The hardest part I ever had with pro se work was interpreting the law and the filing the right forms.  To think, I tackled divorce first, what a mess that was!  I always filed the wrong things and the poor judge would just look at me like....oh please no:)
So thanks again...what you do for the people on this site is irreplaceable.  
KC
If you have any state specific questions for custody in VA, don't hesitate to ask and I will try to find you the answers.