Starting from the twentieth century, the welfare states were gradually influenced by the concept of ”state paternalism”, which believed the state should not allow families to be totally autonomous. In the context of “state paternalism ”, the United Nations, European and American countries have begun to adopt ”the best interests of children ” as the basic principle of Civil Code. Taiwan also adopted a ”children base” Civil Code when amending the Family Law of the Civil Code on September 25, 1996. Inside the current Family Law of the Civil Code, there are many articles adopt the ”Children’s best interests” as the criterion. This study chose to examine the principles of ”children′s interests” in changing the child′s surname, because the right of a surname is a type of personality rights. The existence of a surname is the first step for a country to recognize an individual′s existence and to grant him/ her rights and obligations.
This study examined the influences of the amendments of Paragraph 1 of Article 1059 of Civil Code in 2007 to allow parents to agree on the child’s surname and in 2010, to allow parents to draw a surname, if the child’s surname was not agreed upon, on the national statistics of the newborn’s surnames. Our results showed that the majority of the newborns’ surnames were still agreed upon according to their father′s last names, but the proportions of the newborns using father′s surnames have declined since 2012. Although the mother′s surname agreed upon by both parents only accounted for a minority, but the proportions of using mother′s surname have increased since 2012. The proportions of drawing a surname for the newborns resulted more from mother′s surnames and fewer from the father′s surnames.
In addition, this study examined the influences of the amendments of Paragraph 2 and 3 of Article 1059, Paragraph 1 of Article 1059-1, and Paragraph 2 of Article 1078 of Civil Code in 2010 on the proportions of children’s surnames from fathers’ or mothers’ side. This study found that the majority of children born in wedlock changed to their mother′s surnames later in life, and the number of adoptive children changed to adoptive father′s more than to adopted mother′s surnames.
Finally, this study compared the evaluations of “the interests of children” among four different types of people appeared in the court documents, which resulted in the following seven conclusions. The first conclusion is by comparing the key reasons for granting and dismissing a case in the best interests of the child: overall, the key reason in a granting case favored positive or neutral reasons; the key reason in a dismissing case tended to be negative or neutral reasons.
The second conclusion is: social workers (or family matter investigation officers) tended to use two criteria as “the interests of children”, i.e., the meaning of changing the surname for children is to establish a new life ; children can get along with the petitioner’s family more harmoniously and closely.
The third conclusion is: judges assisted by social workers (or family matter investigation officers) tended to evaluate “the interests of children” more as the following five criteria, i.e., the minor child has not yet understood the meaning of the surname, the minor child thinks that the change of the surname has no effect on him/her, the child is influenced by the grandparents and the mother, the mother no longer want to remind of the child’s father from the father′s surname, and the child can receive financial support.
The fourth conclusion is: judges who were not assisted by a social worker (or a family matter investigation officer) considered “the interests of children” predominantly on one criterion, i.e., the minors’ willingness to change their last names, to be the top of four evaluators.
The fifth conclusion is: the petitioner’s considerations of “the interests of children” were many, i.e., the child′s perception that changing the meaning of the surname is a sense of identity and belonging to the petitioner ′s family, the child can explain to the peer, the child is expected by other family members, the child is influenced by others (peers, teachers), the father or mother thought it was unnecessary to explain the surname to others, the non- petitioner ′s side has rarely cared about the grown up children for a long time, the change of a minor’s surname has no effect on the non- petitioner ′s side (for there are other children with the same surname), and the other party is wanted by law, and has complicated circles and friends.
The sixth conclusion is: the petitioner and the legal professionals were different in their evaluations of “the interests of children”, i.e., the legal professionals emphasized more on the influence of changing the surname on the petitioner’s family, while the petitioner emphasized the safety issues of the family.
The seventh conclusion is: whether the reasons for the dismissed cases of changed to the mother′s surname or the approval cases of changed to the father′s surname, there seemed no gender inequality reasons written in the court documents.
1. Asquith, Stewart & Malcolm Hill (Eds.)(1992)Justice for Children.UK:University of Glasgow in collaboration with UNICEF and Save the Children Fund .
1.Lin, Yun-Hsien Diana(2013). “In the Name of the Father? The Law and Social Norms of Children′s Surnames in Taiwan ,” in Family and Gender in East Asia, pp.75-94,Siumi Maria Tam, Wai Ching Angela Wong, and Danning Wang (eds.)Routledge.