Parents divorce, children's right to name
Although the name is only a symbol, for a country with 5,000 years of civilization, this symbol has been endowed with many meanings, and many people associate it with blood inheritance and education. As a result, disputes caused by children changing their surnames after divorce are constantly seen in the media, and some cases have been delayed for a long time. There will be no disputes over children's surnames in the general relationship between husband and wife. Most parents can't reach an agreement after divorce, and the children are young and have no ability to express their wishes, which leads to many lawsuits about children's surname disputes.
Background information-Name right is a kind of personality right.
Name right refers to the personal right of citizens to decide, use and change their names according to law and ask others to respect their names. It is an important personality right of citizens.
The right to name includes the right to name, the right to use and the right to change. The right to name means that citizens have the right to decide their own names. Every citizen has the right to decide his name in accordance with the law and relevant regulations, and no one has the right to interfere.
Under normal circumstances, when China citizens register their household registration after birth, parents can determine their children's names through consultation. When children grow up and have the ability to recognize, they can also choose their own surnames, either with their father's surname or their mother's surname; If the children have full capacity for civil conduct, they may also decide their own surnames other than their parents' surnames and may change their surnames.
No matter at what stage of children's growth, parents are always equal in exercising their children's right to name. In judicial practice, disputes over children's name rights often occur between divorced parents, especially on the issue of family names. At present, mainly divorced women change their children's names. There are three specific situations:
First, he thinks that he is the legal guardian of his children and has the right to manage and supervise underage children, including changing their names.
Second, the man's failure to support the woman and her children has caused a series of difficulties in life and education. The woman thought that she had cut off all relations and simply changed the name of the child.
Third, there are profound contradictions in marriage. After divorce, women are under great social and mental pressure, and they change their names to get rid of mental pain.
In fact, the child belongs to both parents. The new marriage law promulgated and implemented in China clearly stipulates that "children can take their father's surname or their mother's surname". No matter whether the child takes the father's surname or the mother's surname, the blood relationship and upbringing relationship between the child and his parents cannot be changed. It is extremely wrong to think that children must take their father's surname, and it is even more illegal to fail to perform their maintenance obligations on the grounds that children change their names.
Case Study —— The dispute of surnames leads to the battle of litigation.
The 5-year-old child changed his surname. Husband sued his ex-wife for infringement.
Case 1:
Li and Gao were not in harmony after marriage, and the two sides agreed to divorce. Daughter Li Ling (5 years old) was raised by her mother. When Gao raised his daughter Li Ling, he changed his name to Gao Ling, and in June 2003, he changed his name to the public security organ. Li, the plaintiff, refused to accept it. In August 2003, she sued the court on the grounds of Gao's infringement, demanding that Gao's daughter's original name be restored.
Judge:
The court's first-instance judgment supported the plaintiff Li's claim and ordered Gao to restore his daughter's original name. Neither party appealed and the judgment came into effect.
Comments:
The Marriage Law stipulates that both parents have the right to take their children's surname, but for a single child, his name is usually decided by both parents after birth. Therefore, parents should change their children's surnames after divorce through consultation, which is consistent with the principle of equality in marriage and family relations advocated by the Marriage Law. Moreover, children under 10 have some obstacles in expressing their will because of their physical and psychological immaturity, and even their own will has not really formed. Parents' consent should replace their own will and exercise their civil rights.
This way of exercising rights is based on the kinship of parents and children. At this time, both parents can name and rename their children together, with equal rights. In fact, parents' behavior of changing their children's names without authorization before their children gain the ability to express themselves violates the principle of equality of parents' right to decide their children's names.
Fundamentally speaking, one parent changes the child's name without authorization, which infringes on the parental right of the other parent based on the name.
Divorced couples fight for the right of "crown name"
Case 2:
Mr. Zhao and Ms. Huang divorced because of emotional discord. 12-year-old son Zhao Kangwei lives with his mother, and Mr. Zhao visits his son with his ex-wife from time to time.
One day, when Mr. Zhao was checking his son's homework, he found that his son changed his name to "(Ms. Huang's father's surname is Zhang)." Mr. Zhao thought that Ms. Huang should not change her son's name without authorization, so she filed a lawsuit in court to restore her original name.
Judge:
In view of the fact that the child is over the age of 10 and has the capacity to restrict civil conduct, the court consulted him. Before the judge, the child was silent for a long time before saying that the name was changed by himself and his mother in the dictionary. He also likes the changed name and is willing to call it "Zhang Haoyu". Therefore, the court ruled that Mr. Zhao's petition was rejected, and it was considered that the child's name change was "Zhang Haoyu" in line with the law.
Comments:
Parents, as guardians of their children, should consider their children's interests and wishes as much as possible when determining their names, and safeguard their right to name. The Supreme People's Court stipulated in "Several Specific Opinions of People's Courts on Handling Children's Support in the Trial of Divorce Cases": "If both parents have disputes about the life of 10-year-old minor children, they should consider their opinions". Since/kloc-minors over 0/0 are persons with limited capacity for civil conduct and have certain ability to express their will, from the perspective of safeguarding the legitimate rights and interests of teenagers, their opinions will generally be considered in judicial practice.
In this case, the child's age is over 10, and his own opinion should be considered. The child himself agreed to change his name to "Zhang Haoyu", which did not violate the law.
Experts remind-on the premise of being conducive to the healthy growth of children,
At present, with the rising divorce rate, the situation that parents unilaterally change their children's names is gradually increasing. Because parents unilaterally change their children's names, which leads to the dissatisfaction of the other party, sometimes there will be many "sequelae" such as refusing to pay alimony.
For this problem, experts believe that after divorce, some parents will change their names because their children's surnames are inconsistent with those of the actual caregivers, ignoring the true wishes of minor children, which will have a negative impact on their lives.
Moreover, with the progress of society, surnames are only a symbol of a person, and downplaying surnames reflects the inevitable trend of social development. In addition, children whose parents are divorced should have the right to choose their father's surname or mother's surname or other surnames according to their own wishes, and also have the right to choose their favorite names.
In short, after divorce, parents should be cautious when changing their children's names unilaterally. As parents, we should especially protect the physical and mental health of underage children and minimize the harm to them.