                   IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                        Submitted on Brief, August 15, 2001

     RANDY DALE STORY v. CHASTITY 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 issue. On appeal, we vacate and remand for an evidentiary trial.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Vacated.


HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY, 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 biological father, appellee. The twin children were born to appellant on
February 28, 1994. Subsequently, the State of Tennessee brought an action to establish paternity 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 Judgment in Arrearage in
favor of the State for $7,760.00.

                On January 2, 1999, appellee filed a petition to increase visitation and change the
surname of the minor children. On August 23, 2000 the Juvenile Court entered an Order setting
visitation, and further ordered “[t]hat the Court will take the name change under advisement, and
shall notify counsel for the respective parties of its ruling”. On the February 25, 2001, the Court
entered an Order changing the children’s surname to appellant’s surname. The Order recites in
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 correctly points out that the mother followed the statutory procedure
in force at the time of the birth of these children in causing the children’s names to be placed on their
birth certificates. The statute, 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 children is not
required to be changed as a matter of law if the biological father is declared the parent. See Tenn.
Code. Ann. §68-3-306(c).

               Clearly, a trial court may change the name of a child if it is in the child’s best interest.
Halloran v. Kosta, 778 S.W.2d 454 (Tenn. Ct. 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 surname.

p.287.

               The Trial Court acted impermissibly in ordering the name change without hearing any
evidence as to the best interest of the children. Accordingly, we vacate the Judgment of the Trial
Judge.

               The purported name change would only be appropriate if it is established by a
preponderance of the evidence that such change would be in the best interest of the children.
Accordingly, we remand the case for a trial on this issue, and direct the Trial Judge to appoint a
guardian-ad-litem for the children for this determination.



                                                   -2-
The cost of the appeal is assessed to Randy Dale Story.




                                      _________________________
                                      HERSCHEL PICKENS FRANKS , J.




                                -3-
