Common Law Name changes appear to be invalidated by Hawaii Rev. Statutes §574-5 according to 81. Kushner, supra note 20, at 328–29 n.79 (noting that Hawaii, Louisiana, Maine, and Oklahoma have abrogated the common law name))
§574-5 Change of name: procedure. (a) It shall be unlawful to change any name adopted or conferred under this chapter...
However the only case law I found in Hawaii seems to indicate otherwise:
Jech v. Burch, 466 F. Supp. 714 - Dist. Court, D. Hawaii 1979 provides:
The name-change law has been used as though it applied to any person living in Hawaii. The statute itself, however, only makes it unlawful to change "any name adopted or conferred under this chapter." (emphasis added)
I know of no general requirement of law in the absence of a statute that any special procedures must be followed to change one's name. The common law was, quite clearly, that one was free to call himself by whatever name he wished. Secretary of Commonwealth v. City Clerk of Lowell, Mass., 366 N.E.2d 717 (Mass.1977). In any event, plaintiffs Jech and Befurt did not follow this procedure.
Plaintiffs have a Constitutionally protected right to give their own child any surname they choose.
The refusal of the registrar of births to accept the surname "Jebef" as the child's surname is a deprivation under color of state law of a right secured by the Constitution of the United States.
Defendants have failed to show any reasonable relation to some purpose, within the competency of the State to effect, why this right should be curtailed.
To the extent that H.R.S. § 574-2 (1976) prohibits the exercise of this right, the statute is unconstitutional.
Brill v. Hedges, 783 F. Supp. 333 - Dist. Court, SD Ohio 1991 citing Jech stated:
After a review of the state's asserted interests, the court struck down the statute as unconstitutional. 466 F.Supp. at 720.
In O'Brien v. Tilson, 523 F.Supp. 494 (E.D.N.C.1981), three married couples challenged the constitutionality of a state statute requiring that children born of married parents be given their father's surname. As in Jech, the court agreed with the parents that they had an important constitutional interest in naming their children:
The Court has no difficulty in concluding that the statute does implicate important constitutional interests. It impinges upon decisions affecting family life, procreation, and child rearing; areas of human experience which the Supreme Court has long held must be accorded special protection. In this most private of realms, there is a "right to be let alone," a right to make decisions free of the coercive power of government. The invasion of privacy and individual expression here involved, contra to what defendants appear to suggest, is far from de minimis ...
523 F.Supp. at 496 (citations and footnote omitted). Like the court in Jech, however, the court in O'Brien decided the case under a low level of scrutiny, explicitly leaving the decision whether a fundamental right was involved for another day:
338*338 The Court need not decide whether the state must show a compelling state interest or some lesser interest to justify [the statute], because even under the most relaxed of standards, requiring only a showing that the statute can reasonably be viewed as promoting some legitimate state interest, the statute proves to be patently defective.
Hi Rev Stat §1-1 provides:
The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State. [L 1892, c 57, §5; am L 1903, c 32, §2; RL 1925, §1; RL 1935, §1; RL 1945, §1; RL 1955, §1-1; HRS §1-1]
*Note, however, the Hawaii name change statute was enacted in 1860, prior to the adoption of the common law in 1892 and the common law reception statute cited above specifically excludes parts of the common law in conflict with "the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage."
Presumably the 1860 statute, predating the reception of the common law in Hawaii could be seen as a statute *not* in aid of the common law (as it did not exist when enacted) and a pre-existing Hawaiian usage/custom even though it was ruled unconstitutional in regards to naming of a child and also a previous statute requiring married woman to take husband's surname up until 1975 was ruled unconstitutional pursuant to the equal rights provision of the Hawaii constitution (Cragum [or Cragun depending on source] v. Hawaii and Kashimoto, Civ. No. 43175 (1st Cir. Ct. of Hawaii, Jan. 27,1975), cited in 1 WOMEN L. REP. 1.162 (March 1st, 1975) and the statute has since been amended to allow married couples to retain or change their names accordingly.
For the foregoing reasons it's believed common law name changes do not exist in Hawaii as the statutory method predates the adoption of the common law and Hawaiian custom/usage appears to not have a common law method of name change - however the statute itself has been deemed unconstitutional in some respects so we're unsure.