Professor Barbara Glesner Fines has reported on the Family Law Prof Blog that the Supreme Court of South Dakota, in a 3-2 ruling, has held that the best interests of the child are paramount when deciding what the last name of the child should be.
The child here was conceived of an affair while the mother was married to another man and was born after the mother's reconciliation with the husband. Her husband's name is on the birth certificate and the child bears his last name. After the child's birth, DNA testing showed that the child was the biological child of the third party and a visitation schedule was established. Later, bio-dad filed a motion to change the child's last name to his name.
Obviously, unless the mother had failed to raise a standing issue, this case would never have proceeded to this point in Michigan since Michigan law provides that a bio-dad has no standing to sue to establish paternity of a child conceived and/or born during the mother's marriage to another man.
The South Dakota Court engaged in a best interest analysis, and it's worth your time to review this as issues related to the child's last name can arise in other contexts, as shown by the discussion this week on the State Bar of Michigan Family Law Listserv.
You can read the South Dakota case, In the Matter of Name Change of LMG here.
Prof. Barbara Glesner Fines summary of the case and analysis can be read on the Family Law Prof Blog here.