dissenting. I am deeply troubled by the affirmance of the trial court’s decision in this case, not only because I believe it is not in the child’s best interests to change his surname but also because it unfairly subverts Kara Huffman’s ability to name her child. The real issue here is whether Jacob’s best interests will be served by changing his name to that of his father, or whether those interests will be better served by retaining his mother’s maiden name, which he has now held for twenty-nine months.1
Kara Huffman faced painfully difficult circumstances when her son, Jacob Auston Huffman, was born: she was seventeen years old, still in high school, and unmarried, with a premature infant who required hospitalization. Although she had had an eighteen-month relationship with the child’s father before she became pregnant, he had not only encouraged her to abort the pregnancy but had also ridiculed her as she grew larger, and she knew that the relationship was over. Fortunately, she had the love and nurture of her mother and father, who welcomed the infant into their family’s home. Four months after Jacob’s birth, appellee sought an order to “correct” the birth certificate, claiming that the certificate reflects the child’s name to be Jacob Auston Huffman, when in fact the child’s “lawful” name is Jacob Auston Fisher. Kara opposed this, stating in her response: “ [John N. Fisher] has exhibited contempt, rudeness, and utter disregard for the parental rights of Kara Huffman .... The birth certificate was not erroneously entered reflecting the name, and the child’s correct and lawful name is Jacob Auston Huffman.”
At the hearing, Kara testified that it was her decision to use the last name of Huffman on the birth certificate. As abstracted by appellants, Kara testified:
It was my decision to use the last name of Huffman on the birth certificate. Jacob was going to be raised in my family, around my brothers and sisters. He’s going to be raised with me his whole life, and I think it’s important he has my name. I’m going to be the one raising him. Even when I get married, I can keep my name Huffman and he’ll have the same name as me. I don’t mind doing that. It’s for Jacob. I think it’s in his best interests to keep it Huffman.
Clearly, Kara had given careful thought to her son’s best interests and their future.
In remarkable contrast to Kara’s selflessness, appellee testified that the main reason he wanted Jacob’s name on the birth certificate changed to Fisher was because that was how he grew up, with his father’s name. Although he admitted that his parents were married to each other, he did not think he should be treated differently merely because he had a child out of wedlock. On cross-examination, appellee was questioned about any other reasons he might have for wanting to change Jacob’s name. As abstracted by appellants, appellee testified:
I want the name changed from Huffman to Fisher because I grew up with my dad’s name. Unless she doesn’t get married, her last name’s going to change. I’m always going to be Fisher. As far as the child being raised in the Huffinan home, I think he would be better labeled with a different name.
Similarly, appellee’s father, William M. Fisher, Sr., testified, according to appellant’s abstract, as follows:
I think my grandson’s name should be Fisher. When Nick is at baseball games and somebody asks him if any of his kids are playing and he tells them “Jacob Huffinan,” it’s kind of awkward to explain why he’s got his mother’s name instead of his father’s. . . . My feeling is that his name should be changed because it would be awkward for Nick. It’s usually customary that the child have the father’s name. It would be awkward to explain to everybody. The question would probably never come up for the mother as to why the child’s name were Fisher but she was never married to the father.
Incredibly, appellee thought his child “would be better labeled with a different name.” It defies credulity to think that a child raised in the home of six family members named “Huffman” would be better off with the name “Fisher.” Moreover, it defies my sense of compassion to consider the “awkwardness” that Nick might feel when he explains that his son bears his mother’s surname, and the reason why.
It is the best interests of the child, not the father or his family, that must guide our decision. When the best interests of the child are at stake, the chancellor should look into the peculiar circumstances of each case and act as the welfare of the child appears to require. See Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992); McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991); Matthews v. Oglesby, 59 Ark. App. 127, 952 S.W.2d 684 (1997). Though we review chancery cases de novo on appeal, we will not reverse the findings of fact of a chancellor unless the decision was clearly erroneous. Riley v. Riley, 61 Ark. App. 74, 964 S.W.2d 400 (1998). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Duckworth v. Poland, 30 Ark. App. 281, 785 S.W.2d 472 (1990). After reviewing the record in this case, I am firmly convinced that the chancellor was clearly erroneous in ordering that Jacob’s name be changed to Fisher.
Other jurisdictions have recognized that an unwed father does not have superior rights to have his child carry his surname. In Barabas v. Rogers, 868 S.W.2d 283 (Tenn. App. 1993), the court reviewed the evolution of the use of surnames in English history, stating in summary:
The common law recognized that unmarried mothers obtained their parental rights by giving birth to the child, while fathers obtained their parental rights through marriage. It followed that unmarried mothers possessed greater parental rights than did putative fathers, and in fact, some commentators stated that fathers had no rights with regard to their nonmarital children. Accordingly, it became customary for nonmarital children to assume their mother’s surname at birth rather than their father’s .... [N] either custom nor the common law recognized a father’s right to have his nonmarital children bear his surname. (Citations omitted.)
Id., at 286-87. Further, in Daves v. Nastos, 711 P.2d 314 (Wash. 1985), the trial court entered an order changing the surname of a child born out of wedlock from the mother’s to the father’s surname, without entering any specific findings that a name change was in the child’s best interests. On appeal, the trial court’s order was vacated and the case remanded for a hearing to determine whether the child’s best interests would warrant making such a change. The court stated:
A change in surname, so that a child no longer bears the name of a custodial parent, not only is of inherent concern to the custodial parent but is, in a real sense, a change in status having significant societal implications. Once a surname has been selected for a child, be it the maternal, paternal, or some combination of the child’s parent’s surnames, a change in the child’s surname should be granted only when the change promotes the child’s best interests.
Id., at 318.
In his order granting the name change to Fisher, the chancellor reasoned:
With the father being active in Jacob’s life, Jacob will know that his surname is different from his father’s. Although this happens often, it is not the norm in this locale. The norm in this locale is that the child will have the same surname as the father. Whether that is right or wrong, that is the norm in this locale.
This reasoning is virually the same as the announced “policy” of the chancellor in Mathews, supra, to wit: “It has been this court’s policy to change the last name to that of the father unless it is a situation where the child is, let’s say, ten or eleven years old, been in school for a number of years, everybody knows that child by that last name.” The court of appeals reversed the chancellor in Mathews, finding that the mechanical application of a “policy” that only took into account the child’s age precluded consideration of the full panoply of factors inherent in determining the best interests of a child. Here, the chancellor’s focus on “the norm in this locale” is commensurate with a policy of automatically assigning a child his father’s surname.
I do not believe there are compelling facts which make it imperative to change Jacob’s surname, and I do not believe it is in Jacob’s best interests to do so. In my opinion, the significant considerations are that it is Kara Huffman who has custody of Jacob, it is she who is his primary caretaker, and it is she who will make major decisions for him as he grows up. Moreover, as a result of the decision of the prevailing judges, it is Jacob who will deal with awkwardness when his mother enrolls him in school and he tries to understand why his name is not the same as hers. I do not believe there are more compelling facts in this case than there were in Reaves, supra, wherein our supreme court announced it was not in the minor child’s best interests to change the surname he had carried since birth. I would therefore reverse the chancellor and restore the child’s birth name.
Because this court has reached a tie vote in this case, the trial court’s decision must be affirmed. Ark. Code Ann. § 16-12-113 (Repl. 1994). It would be instructive for appellants to seek a review of this decision in our supreme court. Ark. Sup. Ct. R. 1-2(e) (i).
Neal and Arey, JJ., agree.
The trial court granted appellant’s petition to stay the order changing Jacob’s surname on his birth certificate until the decision has been reviewed by the appellate courts.