### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Submitted on Bri

ef, August 15, 2001 RANDY DALE STORY v. CHA STITY DAWN (BATTS) SHELTON
Direct Appeal from the Juvenile Court for Dickson County No. 01-95-004-M Hon. A. Andrew Jackson, Judge

No. M2001-01009-COA-R3-JV - Filed August 28, 2001

The Trial Judge ordered a surname change of two minors to the father’s surname, without hearing evidence on the i

ssue. On appeal,

we vacate and r

emand for an evid

entiary tri al.
Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Juvenile Cour

t Vacated.

H ERSCHEL P ICKENS F RANKS , J., delivered the opi nion of the court, i

n which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined. Susan H. Moseley, Nashville, Tennessee, for Appellant, Chastity Dawn (Batts) Shelton.

OPINION

The issue on appeal is whether the Trial Judge erred in changing the surnames of DCB and CSB to their biol ogical father

, appellee. The t

win children we re born to appellant on February 28, 1994. Subsequen

tly, the State

of Tennessee br

ought an action t

o establish pater

nity and set child support. An Agreed Order was not entered establishing paternity until June 25, 1997. That Order set a rate of support with an additional $10.00 per month toward a Judg

ment in Arreara

ge in favor of the State for $7,760.00.

On January 2, 19

99, appellee file

d a petition to incre

ase visitati on a nd change the surname of the mino r children. On Augu st 23, 2000 th e Juvenile Court entered an Order setting visitation, and further orde red “[t]hat the Cour

t will t a ke the name change under advisement, and shall notify counsel for the respective parties of its ruling”. On the Fe bruar y 25, 2001, the Court-2-

entered an Order changing the children’s surname to appellant’s surname. The Order recites i

n pertinent part: Upon review of this case and the record as a whole, the Court rules that the children’s name should be changed. . . . The appellant corre

ctly points

out that the mother followed the statutory procedure in force at the time

of the birth of the

se children in ca

using the childre

n’s names to

be placed on thei

r birth certificates. The stat

ute, in pertinent part, provided Tennessee Code Annotated §68-3-305 (b)(1 ) stated: [i]f

the mother is not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate of birth, and the surname of the child shall be that

of the legal surname of the mother. All information pertaining to the father shall be omitted. Also, the appellee is correct in observing that the surname of the chil dren is not required to be ch

anged as a matte

r of law if the biol

ogical father

is declared

the parent. See Tenn. Code. Ann. §68-3-306(c).

Cle arl y, a trial court may

change the nam

e of a child if it is in

the child’s best int

erest. Halloran v. Kosta , 778 S.W.2 d 454 (Tenn. C t. App. 1988), and this Court set forth criteria to be considered

by the Trial Court in considering a name change in Barabas v. Rogers , 868 S.W.2d 263 (Tenn. Ct. App. 1993), where the Court said:

Among the criteria for determining whether changing

a child’s surname will be in the child’s best interests are: (1) the child’s preference, (2) the change’ s potential effect on the child’s relationship with each parent, (3) the length of time the child has had its present surname, (4) the degree of community respect associated with the present and proposed surname, and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surna me. p.287. The Trial Court acted impermissibly in ordering the name change without hear i ng an y evidence as to the best interest of the children. Accordingly, we vaca te the Judgment of the Trial Judge. The purported nam e cha nge w oul d on ly be app rop ria te i f it is e sta bli she d by a preponderance

of the evidence that such change would be in the best interest of the children. Acco rdi ngly, we remand the case for a trial on this i ssue, and direct t he Trial Judge to a

ppoint a guardian-ad-litem for the children for this determination.-3- The cos t of the app eal is a sse sse d to Ran dy Da le S tor y.

_________________________ H ERSCHEL P ICKENS F RANKS , J.