RENDERED: NOVEMBER 12, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1393-MR

SHELBY GOLLIHUE APPELLANT 

v. 

APPEAL FROM CARTER CIRCUIT COURT

HONORABLE JEFFREY L. PRESTON, JUDGE

ACTION NO. 19-CI-00361

DEVIN MCDAVID APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.

GOODWINE, JUDGE: Shelby Gollihue (“Gollihue”) appeals from an order of the 

Carter Family Court granting Devin McDavid’s (“McDavid”) request to change 

the surname of the parties’ minor child. After our review, we reverse and remand. 

Gollihue and McDavid are the parents of a son born on August 18, 

2019. The parties were never married and were not seeing each other at the time of 

their son’s birth. On the child’s birth certificate, his surname was listed as 
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Gollihue, his mother’s. McDavid was not present for the child’s birth, and 

Gollihue did not list his name as the father on the birth certificate. Furthermore, 

McDavid did not file an affidavit of paternity.

In October 2019, McDavid filed a petition for custody of the minor 

child. He requested care, custody, and control of the child. Gollihue filed an 

answer objecting to the relief sought citing concerns with McDavid’s being granted 

unsupervised visitation. The family court entered a temporary order granting 

temporary joint legal custody with McDavid receiving limited visitation. The 

parties filed various motions between the temporary order and the final hearing 

that are not at issue here. 

The family court held a final hearing on September 8, 2020. During 

the hearing, the court heard testimony from the parties and other witnesses. The 

family court heard very little testimony about the child’s surname, and the record 

lacks any written motion regarding changing the child’s surname. 

On direct examination, McDavid and his counsel had the following 

exchange about the child’s surname:

Q. Would you like to be able – for your son to be able to 

have your last name, McDavid?

A. Definitely.

Q. Are you asking that the court order that the name be 

changed?
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A. Yes, ma’am.

Transcript of September 8, 2020 Hearing (Tr.) at p. 15.

During cross-examination of Gollihue, McDavid’s counsel asked the 

following questions:

Q. Do you have any objections to changing your son’s 

last name to McDavid?

A. I would really like it to stay mine. If at all possible, I 

would really like it to stay my name. 

Q. Okay. Do you have another child? 

A. No, ma’am, I don’t. 

Q. All right. Why would you like it to stay your name?

A. Because I feel like it should be my name. I also 

would just really like it because I – this is just based off 

what – I don’t want him growing up wondering, you 

know, like, I would, like, maybe hyphenate it. But I 

would really like the Gollihue part to still be on there if at 

all possible. And if I were to ever get married, I would 

still leave his name as the same. 

Q. So you wouldn’t mind it being, like, hyphenated, like 

. . . Gollihue-McDavid, something like that?

A. Maybe. I would just really like it to stay Gollihue if 

at all possible because all of his medical records are 

done, his insurance cards, his Social Security, everything 

is all with the last name Gollihue. 

Q. Well, women change their names maybe several 

times during their life and all of their documents get 

changed, correct?
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A. Yes. But it would be a really big hassle for me to go 

through all the doctors, all the medical records, 

everything, and get everything changed.

Tr. at 80-81. 

The family court took the matter under advisement and entered an 

order granting joint custody, timesharing which would increase if McDavid’s hair 

follicle sample tested negative for drugs, and changing the child’s surname to 

McDavid. Pertinent to this appeal, the family court found “the last name of the 

child shall be changed to McDavid.” Record (R.) at 107.

Gollihue filed a motion to alter, amend, or vacate, which the family 

court denied. This appeal followed.

On appeal, Gollihue argues the family court’s order regarding the 

minor child’s surname should be vacated because (1) she had the authority to 

choose his surname under Kentucky Revised Statute (KRS) 213.046(10); and (2) it 

is not in the best interest of the child to change his surname. 

The standard of review is whether the family court abused its 

discretion in determining the best interests of the child would be upheld either by 

granting or denying a motion for the change. Krug v. Krug, 647 S.W.2d 790, 793 

(Ky. 1983). The test for abuse of discretion is “‘whether the trial judge’s decision 

was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’”

Santise v. Santise, 596 S.W.3d 611, 616 (Ky. App. 2020) (quoting Goodyear Tire 
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and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). “The 

determination of a child’s best interests is a factual finding and the standard of 

review is whether the finding of fact was clearly erroneous. A finding of fact is 

clearly erroneous only if it is manifestly against the great weight of the evidence.” 

Addison v. Addison, 463 S.W.3d 755, 765 (Ky. 2015) (citing Frances v. 

Frances, 266 S.W.3d 754 (Ky. 2008)).

KRS 213.046(10) is the applicable section regarding paternity and 

naming the minor child in this instance:

The following provisions shall apply if the mother was 

not married at the time of either conception or birth or 

between conception and birth or the marital relationship 

between the mother and her husband has been interrupted 

for more than ten (10) months prior to the birth of the 

child:

(a) The name of the father shall not be entered on 

the certificate of birth. The state registrar shall 

upon acknowledgment of paternity by the father 

and with consent of the mother pursuant to 

KRS 213.121, enter the father’s name on the 

certificate. The surname of the child shall be 

any name chosen by the mother and father. If 

there is no agreement, the child’s surname shall 

be determined by the parent with legal custody 

of the child.

(b) If an affidavit of paternity has been properly 

completed and the certificate of birth has been 

filed accordingly, any further modification of 

the birth certificate regarding the paternity of 

the child shall require an order from the District 

Court.
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(c) In any case in which paternity of a child is 

determined by a court order, the name of the 

father and surname of the child shall be entered 

on the certificate of birth in accordance with the 

finding and order of the court.

(d) In all other cases, the surname of the child shall 

be any name chosen by the mother.

Here, McDavid was not present at the hospital for the child’s birth, 

did not sign a paternity affidavit, and was not listed on the birth certificate. As the 

parties were not married, there was no presumed father. Thus, KRS

213.046(10)(d) applied, and Gollihue had the legal right to choose the child’s 

surname. 

For a family court to order a change in a child’s surname, it should

apply the following factors in determining the best interest of the child:

[I]dentification of the child as a part of a family unit; the 

effect on the child’s relationship with each parent; the 

motivation of the parties; the effect . . . the failure to 

change the name will have in furthering the estrangement 

of the child from a father exhibiting a desire to preserve 

the parental relationship; the age of the child and how 

long the child has had the current name; the effect of the 

change of the child’s surname on the preservation and 

development of the child’s relationship with each parent; 

. . . the degree of community respect associated with the 

present and proposed surname[;] . . . the possibility that a 

different name may cause insecurity or lack of 

identity; the use of a particular surname for a substantial 

period of time without objection; the preference of the 

child [if age and maturity permit]; difficulty the child 

may experience with the proposed surname; [and] 
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embarrassment or inconvenience that may result if the 

child’s surname differs from that of the custodial parent. 

(Citations omitted.)

Hazel v. Wells, 918 S.W.2d 742, 745 (Ky. App. 1996) (footnote omitted) (quoting 

James v. Hopmann, 907 P.2d 1098, 1100 (Okla. Civ. App. 1995)). Additionally, 

Kentucky courts consider parental misconduct and “failure to support the 

child.” Id. (quoting Keegan v. Gudahl, 525 N.W.2d 695, 699 (S.D. 1994)).

Here, the family court patently abused its discretion in granting 

McDavid’s request to change the child’s surname. The family court failed to

“make any findings concerning the best interest of the child.” Id. In fact, the 

family court likely did not hear enough evidence to properly consider the 

applicable factors. “If necessary, the court may allow additional proof so that the 

best interest of the child may be determined from a preponderance of the evidence.

‘Only the child’s best interest should be considered . . . on remand.’” Id.

(quoting Keegan, 525 N.W.2d at 700). 

The family court may not require the child to bear McDavid’s name 

without giving due consideration to the factors in Hazel. Id. “In these times of 

parental equality, arguing that the child of unmarried parents should bear the 

parental surname based on custom is another way of arguing that it is permissible 

to discriminate because the discrimination has endured for many years.” Id. 

(quoting Bobo v. Jewell, 528 N.E.2d 180, 185 (Ohio 1988)).
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For the foregoing reasons, we reverse the portion of the family court’s 

order changing the child’s surname and remand for further proceedings applying 

the best interest of the child factors.

ALL CONCUR.

BRIEF FOR APPELLANT:

Tracy D. Frye

Marie E. Troxler

Russell, Kentucky

BRIEF FOR APPELLEE:

MaLenda S. Haynes

Grayson, Kentucky