73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1039
 
                         House Bill 2941
 
Sponsored by Representative BERGER; Representatives BOQUIST,
  BROWN, GARRARD, KITTS, KRIEGER, KROPF, WIRTH (at the request of
  Matt Minahan)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Permits man to petition court to reopen issue of paternity if
blood tests show zero percent probability that man is father of
child. Establishes conditions under which court may render
judgment of nonpaternity.
 
                        A BILL FOR AN ACT
Relating to paternity; creating new provisions; and amending ORS
  109.070, 109.073, 109.092, 109.124, 109.125, 109.175, 109.326
  and 416.443.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2005 Act is added to and made
a part of ORS 109.124 to 109.230. + }
  SECTION 2.  { + (1) At any time after paternity is established
under ORS 109.070 (1), if no blood tests, as defined in ORS
109.251, were performed before paternity was established, a man
who has been ordered to pay child support may petition the court
to reopen the issue of paternity.
  (2) The petition must contain:
  (a) An affidavit executed by the petitioner stating that the
petitioner has discovered new evidence since paternity was
established; and
  (b) The results of blood tests, administered within 90 days
before the petition is filed, that show a zero percent
probability that the petitioner is the father of the child.
  (3) Upon receipt of a petition, the court may, or on the motion
of a party shall, order the mother, child and petitioner to
submit blood tests as provided in ORS 109.250 to 109.262.
  (4) The provisions of ORS 109.155 apply to a proceeding under
this section.
  (5) The court shall make a determination of nonpaternity if the
court finds, based on all the evidence as provided in ORS
109.258, that the petitioner is not the father of the child and
the petitioner has shown that:
  (a) The petitioner has not adopted the child;
  (b) The child was not conceived by artificial insemination
while the petitioner and the mother were married;
  (c) The petitioner has not acted to prevent the father from
asserting his parental rights; and
 
  (d) The petitioner, with knowledge that he is not the father,
has not:
  (A) Married the mother and voluntarily assumed the duty of
supporting the child;
  (B) Been named as the child's father on the child's birth
certificate with the petitioner's consent;
  (C) Voluntarily entered into a written agreement to support the
child; or
  (D) Disregarded or, without good cause, failed to respond to
written notice from a child support agency or a court ordering
the petitioner to submit to blood tests. + }
   { +  (6)(a) Child support obligations ordered before a
petition is filed under this section continue until a
determination of nonpaternity is made by the court. However, the
court may order the petitioner to make child support payments to
the Division of Child Support and the division to hold the
payments until a judgment is entered under ORS 18.075.
  (b) If the court renders a judgment of nonpaternity under this
section, the court may order the division to return the child
support payments held by the division to the petitioner or to
credit the payments against any arrearages owed by the
petitioner.
  (7) If the court denies the petition, the court shall award
reasonable attorney fees to the nonpetitioning parties. + }
  SECTION 3. ORS 109.070 is amended to read:
  109.070. (1) The paternity of a person may be established as
follows:
    { - (a) The child of a wife cohabiting with her husband who
was not impotent or sterile at the time of the conception of the
child shall be conclusively presumed to be the child of her
husband, whether or not the marriage of the husband and wife may
be void. - }
    { - (b) - }   { + (a) + } A child born in wedlock, there
being no judgment of separation from bed or board,   { - shall
be - }   { + is + } presumed to be the child of the mother's
husband, whether or not the marriage of the husband and wife may
be void. This   { - shall be - }   { + is + } a disputable
presumption.
    { - (c) - }   { + (b) + } By the marriage of the parents of a
child after birth of the child.
    { - (d) - }   { + (c) + } By filiation proceedings.
    { - (e) - }   { + (d) + } By filing with the State Registrar
of the Center for Health Statistics the voluntary acknowledgment
of paternity form as provided for by ORS 432.287. Except as
otherwise provided in subsection (2) of this section, this filing
establishes paternity for all purposes.
    { - (f) - }   { + (e) + } By having established paternity
through a voluntary acknowledgment of paternity process in
another state.
    { - (g) - }   { + (f) + } By paternity being established or
declared by other provision of law.
  (2)(a) A party to a voluntary acknowledgment of paternity may
rescind the acknowledgment within the earlier of:
  (A) Sixty days after filing the voluntary acknowledgment of
paternity; or
  (B) The date of a proceeding relating to the child, including a
proceeding to establish a support order, in which the party
wishing to rescind the acknowledgment is also a party to the
proceeding. For the purposes of this subparagraph, the date of a
proceeding is the date on which an order is entered in the
proceeding.
  (b)(A) A signed voluntary acknowledgment of paternity filed in
this state may be challenged:
  (i) At any time after the 60-day period  { + in a proceeding
under section 2 of this 2005 Act or + } on the basis of fraud,
 
duress or material mistake of fact. The party bringing the
challenge has the burden of proof.
  (ii) Within one year after the voluntary acknowledgment has
been filed  { - , unless the provisions of paragraph (c) of this
subsection apply - } . No challenge to the voluntary
acknowledgment may be allowed more than one year after the
voluntary acknowledgment has been filed, unless the provisions of
sub-subparagraph (i) of this subparagraph apply.
  (B) Legal responsibilities arising from the voluntary
acknowledgment of paternity, including child support obligations,
may not be suspended during the challenge, except for good cause.
    { - (c) No later than one year after a voluntary
acknowledgment of paternity form is filed in this state and if
genetic parentage tests have not been previously completed, a
party to the acknowledgment or the state, if child support
enforcement services are being provided under ORS 25.080, may
apply to the court or to the administrator, as defined in ORS
25.010, for an order requiring that the parties and the child
submit to genetic parentage tests. - }
    { - (d) If the results of the tests exclude the male party as
a possible father of the child, a party or the state, if child
support enforcement services are being provided under ORS 25.080,
may apply to the court for an order of nonpaternity. Upon receipt
of an order of nonpaternity, the Director of Human Services shall
correct any records maintained by the State Registrar of the
Center for Health Statistics that indicate that the male party is
the parent of the child. - }
    { - (e) The state Child Support Program shall pay any costs
for genetic parentage tests subject to recovery from the party
who requested the tests. - }
  SECTION 4. ORS 109.125 is amended to read:
  109.125. (1) Any of the following may initiate proceedings
under this section:
  (a) A mother of a child born out of wedlock or a female
pregnant with a child who may be born out of wedlock;
  (b) The duly appointed and acting guardian of the child,
conservator of the child's estate or a guardian ad litem, if the
guardian or conservator has the physical custody of the child or
is providing support for the child;
  (c) The administrator { + , as defined in ORS 25.010 + };
  (d) A person claiming to be the father of a child born out of
wedlock or of an unborn child who may be born out of wedlock;
 { - or - }
   { +  (e) A man denying that he is the father of a child;
or + }
    { - (e) - }   { + (f) + } The minor child by a guardian ad
litem.
  (2) Proceedings   { - shall be - }   { + are + } initiated by
the filing of a duly verified petition of the initiating party.
The petition shall contain:
  (a) If the initiating party is one of those specified in
subsection (1)(a) to (c) of this section:
  (A) The name of the mother of the child born out of wedlock or
the female pregnant with a child who may be born out of wedlock;
  (B) Facts showing the petitioner's status to initiate
proceedings;
  (C) A statement that a respondent is the father;
  (D) The probable time or period of time during which conception
took place; and
  (E) A statement of the specific relief sought.
  (b) If the initiating party is a person specified in subsection
(1)(d) of this section:
  (A) The name of the mother of the child born out of wedlock or
the female pregnant with a child who may be born out of wedlock;
  (B) A statement that the initiating party is the father of the
child and accepts the same responsibility for the support and
education of the child and for all pregnancy-related expenses
that he would have if the child were born to him in lawful
wedlock;
  (C) The probable time or period of time during which conception
took place; and
  (D) A statement of the specific relief sought.
   { +  (c) If the initiating party is a person specified in
subsection (1)(e) of this section:
  (A) The name of the mother of the child or the female pregnant
with a child;
  (B) A statement that the initiating party is not the father of
the child; and
  (C) A statement of the specific relief sought. + }
  (3) When proceedings are initiated by the administrator,
 { + as defined in ORS 25.010, + } the state and the child's
mother and putative father are parties.
  (4) When a proceeding is initiated under this section and the
child support rights of one of the parties or of the child at
issue have been assigned to the state,  { + the petitioner shall
serve + } a true copy of the petition   { - shall be served - }
by mail or personal delivery on the Administrator of the Division
of Child Support of the Department of Justice or on the branch
office providing support services to the county in which the suit
is filed.  { +  + }
  SECTION 5. ORS 416.443 is amended to read:
  416.443. (1) No later than one year after an order establishing
paternity is entered under ORS 416.440 and if no
  { - genetic parentage test has - }   { + blood tests, as
defined in ORS 109.251, have + } been completed, a party may
apply to the administrator to have the issue of paternity
reopened. Upon receipt of a timely application, the administrator
shall order:
  (a) The mother and the male party to submit to
 { - parentage - }  { + blood + } tests; and
  (b) The person having physical custody of the child to submit
the child to a   { - parentage - }   { + blood + } test.
  (2) If a party refuses to comply with an order under subsection
(1) of this section, the issue of paternity shall be resolved
against that party by an appropriate order of the court upon the
motion of the administrator. Support paid before an order is
vacated under this section   { - shall - }   { + may + } not be
returned to the payer.
   { +  (3) Notwithstanding subsection (1) of this section, at
any time a man may petition a court to reopen the issue of
paternity under section 2 of this 2005 Act. + }
  SECTION 6. ORS 109.073 is amended to read:
  109.073. Except as otherwise provided in ORS 25.020, the Social
Security number of a parent who is subject to a paternity
determination pursuant to ORS 109.070   { - (1)(d), (e), (f) or
(g) - }  { +  (1)(c), (d), (e) or (f) + } or 416.400 to 416.470
shall be included in the order, judgment or other declaration
establishing paternity.
  SECTION 7. ORS 109.092 is amended to read:
  109.092. When it is determined that a woman is pregnant with a
child, the woman and any man to whom she is not married and with
whom she engaged in sexual intercourse at approximately the time
of conception have an obligation to recognize that the man may be
the other person responsible for the conception. During the
months of pregnancy, the man may join the woman in acknowledging
paternity and assuming the rights and duties of expectant
parenthood. If the man acknowledges paternity of the expected
child and the woman denies that he is the father or refuses to
join him in acknowledging paternity, the man may seek relief
under ORS 109.125. If the woman wants the man to join her in
acknowledging his paternity of the expected child and the man
denies that he is the father or refuses to join her in
acknowledging paternity, the woman may seek relief under ORS
109.125. If after the birth of the child the mother decides to
surrender the child for adoption and paternity has not been
acknowledged as provided in ORS 109.070   { - (1)(e) - }
 { + (1)(d) + } or the putative father has not asserted his
rights in filiation proceedings, the mother has the right without
the consent of the father to surrender the child as provided in
ORS 418.270 or to consent to the child's adoption.
  SECTION 8. ORS 109.124 is amended to read:
  109.124. As used in ORS 109.124 to 109.230, unless the context
requires otherwise:
  (1) 'Child attending school' has the meaning given that term in
ORS 107.108.
  (2) 'Child born out of wedlock' means a child born to an
unmarried woman, or to a married woman by a man other than her
husband  { - , if the conclusive presumption in ORS 109.070
(1)(a) does not apply - } .
  (3) 'Respondent' may include, but is not limited to, one or
more persons who may be the father of a child born out of
wedlock, the husband of a woman who has or may have a child born
out of wedlock, the mother of a child born out of wedlock, the
female pregnant with a child who may be born out of wedlock, or
the duly appointed and acting guardian of the child or
conservator of the child's estate.
  SECTION 9. ORS 109.175 is amended to read:
  109.175. (1) If paternity of a child born out of wedlock is
established pursuant to a petition filed under ORS 109.125 or an
order or judgment entered pursuant to ORS 109.124 to 109.230 or
ORS 416.400 to 416.470, or if paternity is established by the
filing of a voluntary acknowledgment of paternity as provided by
ORS 109.070   { - (1)(e) - }  { +  (1)(d) + }, the parent with
physical custody at the time of filing of the petition or the
notice under ORS 416.415, or the parent with physical custody at
the time of the filing of the voluntary acknowledgment of
paternity, has sole legal custody until a court specifically
orders otherwise. The first time the court determines who should
have legal custody, neither parent   { - shall have - }
 { + has + } the burden of proving a change of circumstances. The
court shall give primary consideration to the best interests and
welfare of the child and shall consider all the standards set out
in ORS 107.137.
  (2) In any proceeding under this section, the court may cause
an investigation, examination or evaluation to be made under ORS
107.425 or may appoint an individual or a panel or may designate
a program to assist the court in creating parenting plans or
resolving disputes regarding parenting time and to assist parents
in creating and implementing parenting plans under ORS 107.425
(3).
  SECTION 10. ORS 109.326 is amended to read:
  109.326. (1) If the mother of a child was married at the time
of the conception or birth of the child, and it has been
determined pursuant to ORS 109.070 or judicially determined that
her husband at such time or times was not the father of the
child, the husband's authorization or waiver may not be required
in adoption, juvenile court or other proceedings concerning the
custody of the child.
  (2) If paternity of the child has not been determined, a
determination of nonpaternity may be made by any court having
adoption, divorce or juvenile court jurisdiction. The testimony
or affidavit of the mother or the husband or another person with
knowledge of the facts filed in the proceeding shall constitute
competent evidence before the court making the determination.
  (3) Before making the determination of nonpaternity, citation
to show cause why   { - such - }   { + the + } husband's parental
rights should not be terminated   { - shall - }   { + must + } be
served on him in the manner provided by ORS 109.330 if:
  (a) There has been a determination by any court   { - of
competent jurisdiction - }  that the husband is the father of the
child;
  (b) The child resided with the husband at any time since the
child's birth; or
  (c) The husband repeatedly has contributed or tried to
contribute to the support of the child.
  (4) There   { - shall be - }   { + is + } sufficient proof to
enable the court to grant the relief sought without notice to the
husband provided that the affidavit of the mother of the child,
of the husband or of another person with knowledge of the facts
filed in the proceeding states or the court finds from other
competent evidence:
  (a) That the mother of the child was not cohabiting with her
husband at the time of conception of the child and that the
husband is not the father of the child;
  (b) That the husband has not been judicially determined to be
the father;
  (c) That the child has not resided with the husband; and
  (d) That the husband has not contributed or tried to contribute
to the support of the child.
  (5) Notwithstanding the provision of ORS 109.070
 { - (1)(b) - }  { +  (1)(a) + }, notice to the husband pursuant
to ORS 109.330   { - shall not be - }   { + is not + } required
and the husband's consent, authorization or waiver   { - shall
not be - }   { + is not + } required in adoption proceedings
concerning the child unless the husband has met the requirements
for notice in subsection (3)(a), (b) or (c) of this section.
  (6) A husband who was not cohabiting with the mother at the
time of the child's conception has the primary responsibility to
protect the husband's rights.
  (7) Nothing in this section   { - shall - }   { + may + } be
used to set aside an act of a permanent nature, including but not
limited to adoption or termination of parental rights, unless the
father establishes within one year after the entry of the final
judgment or order fraud on the part of the petitioner with
respect to the matters specified in subsection (4)(a), (b), (c)
or (d) of this section.
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