dissenting.
I respectfully dissent from the majority opinion because the circuit court applied the erroneous standard of clear and convincing evidence. The decision of the Court of Appeals was correct and the judgment of the district court was also correct and should be reinstated.
This change of name petition has traveled a long judicial road since it was first filed in 1987. The legal problems of the parties have even a longer history. The natural mother and father were divorced in 1981 and the mother married again in 1982. Custody had been awarded to the mother and the two girls resided with the mother in Hart County where they attended school. The post-divorce proceedings involved contempt proceedings by the mother against the father for failure to pay child support and to carry hospitalization as set out in the divorce decree. The father countered by claiming the mother had not made the children available for visitation pursuant to the decree. The father also complained about the girls’ using the name “Logsdon” which was that of the new husband of the mother. In 1985, the Hart Circuit Court ordered the girls’ legal name to be used on their official records, but recognized that there was no way of preventing them from using whatever name they chose.
During the Christmas season of 1984, the father’s mother attacked the mother of the girls at a Bowling Green shopping center and knocked her unconscious. Both girls witnessed the attack at which the paternal grandfather was also present. The circuit court observed that the incident had a great impression on the present attitude of the girls toward their father. They seemed to transfer a certain amount of their antagonism toward their grandmother to their father. The girls told the circuit court that they had been using the name Lodgsdon ever since the shopping center attack and wanted their official last names to match the one they had chosen to use.
The mother, as legal custodian of the girls, petitioned the district court to change the last names of her two daughters. Proper notice was given to the father and he retained counsel and filed an answer opposing the change. A full hearing was held and counsel for each of the parties was given an opportunity to brief the matter for the district court.
Kentucky recognizes the common law right of any person to informally change their name by public declaration. Even a child may exercise such common law right, but the child may not do so pursuant to statute because the statutory right is vested in the parent. Burke v. Hammonds, Ky.App., 586 S.W.2d 307 (1979). K.R.S. Chapter 401 is not intended to abrogate the common law but merely to assure that a permanent record is made of the name change. Burke, supra. K.R.S. 401.020 gives exclusive jurisdiction over name changes to the district court. Blasi v. Blasi, Ky., 648 S.W.2d 80 (1983). The statute does not provide guidance for the district court as to what standard should be used in considering such a petition. The Hart District Court employed the best interest of the children standard. The district judge considered the wishes of the children and the contrary wishes of the natural father. The mother testified that she was neutral. Ultimately, the district judge concluded that the evidence was overwhelming that the best interest of the two children would be best served by allowing them to legally change their last names. Certainly any natural father has a protectable right to have his child bear his name, but the best interest of the child is an important test in considering a request for a name change. As the district judge observed, if the best interests of the child can be used to determine custody pursuant to K.R.S. 403.270, why should the best interests of the child not be used to determine the name of the child where there is a conflict between one of the natural parents and the children.
It should be obvious that to legally require the official records of these two children use a name other than what they have chosen creates only continued confusion and ill will. It is clearly not in the best interests of the children. It is a vain hope that some legal theoreticians may honestly harbor that in some way the retention of a *124last name under the circumstances of this case preserves a family relationship between daughters and father. The typical family relationship was ruptured by the adjudication in the initial divorce decree that the marital relationship was irretrievably broken. The overwhelming evidence here indicates that the children have very strong reasons not to want to continue any kind of name identity. Accordingly it is internally contradictory to posit that a wholesome father-daughter relationship can somehow arise from the ashes of this situation.
Although a natural father may have a protectable right to have his child bear his name, a change in last name does not amount to a termination of parental rights. Only the extreme measure of termination has been held to justify a more stringent standard. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); NS v. C & MS, Ky., 642 S.W.2d 589 (1982).
In matters concerning child custody following a divorce, the best interest of the child is the paramount consideration despite the fact that the rights of the parents are necessarily involved.
The district court carefully and competently heard the matter in dispute and rendered an extensive finding of fact correctly applying the available law to the facts of this case. A reviewing court cannot substitute its findings of fact for those of the initial trier of fact. No reviewing court which does not have the benefit of live testimony or the opportunity to discern the demeanor of any of the witnesses can dip into the fact finding process.
This is a particularly fact-intensive case and the determination of facts should be left to the initial trier of fact as well as any necessary conclusion related directly thereto. This change of name occurred only after five years of separation and a serious physical attack on the mother of the children in question.
There is nothing unusual about the application of the best interest test in name changes for minors where one parent contests such a change. See Cohan v. Cunningham, 104 App.Div.2d 716, 480 N.Y.S.2d 656 (4th Dept.1984); Overton v. Overton, 207 Mont. 292, 674 P.2d 1089 (1984); Ribeiro v. Monahan, 524 A.2d 586 (R.I.1987); Daves v. Nastos, 105 Wash.2d 24, 711 P.2d 314 (1985); Ex parte Taylor, 322 S.W.2d 309 (Tex.Civ.App.1959); Azzara v. Waller, 495 So.2d 277 (Fla.App., 1986).
Although a number of other states have chosen to enact statutory standards encompassing the “clear and convincing” standard, Kentucky has not. It is clear that the general assembly has left the application of K.R.S. 401.020 to the sound discretion of the district court. This Court should not legislate by judicial fiat. Application of the “best interest of the child” test was not reversible error.
I would affirm the decision of the Court of Appeals and reinstate the judgment of the district court.