concurring specially.
In a divorce proceeding the children are wards of the court and virtually, if not actually, in custodio legis; the parent to whom custody is granted thus serves as a kind of receiver or trustee. Fortson v. Fortson, 195 Ga. 750 (25 SE2d 518); Swain v. Wells, 210 Ga. 394, 398 (80 SE2d 321). In this case, custody was granted to the mother, whose settlement agreement, made a part of the divorce decree, stipulated that the names of the children would not be changed without the consent of the natural father. This *392being so, and so long as the children remain un-emancipated minors supported by their father, the decree as to them is as dispositive of their right to name change as it is to their custody, or the amount to be furnished for their support, or any other terms and conditions of the decree affecting their status and welfare. In my opinion,. even if Judge Clark’s dissent be correct, the case should be reversed because a petition for name change by these 11-and 15-year-old minors only, and in the absence of proper and successful modification of the divorce decree, has no standing.
In any event, the burden here would be on the complainants to make a showing authorizing the court in the exercise of sound legal discretion (Binford v. Reid, 83 Ga. App. 280 (63 SE2d 345)) to grant a name change where one parent objected and the other kept silent. If this eleven-year-old could, for instance, successfully prosecute such an action in this case, she could do it in any case where any adult not in loco parentis assumed to act as next friend, even though she remained in the custody of both parents, and both objected.
Courts generally frown upon name changes of unemancipated minors where the objecting natural father supports them, and there is no substantial reason therefor other than personal preference. See cases annotated in 65 CJS 26, Names, § 11(2). The petition here alleges no other cause for seeking the name change, and this cause is not sufficient. We cannot assume that issues not raised in the record before us were in fact litigated.