73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
Enrolled
Senate Bill 234
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon Law Commission)
CHAPTER ................
AN ACT
Relating to paternity; creating new provisions; and amending ORS
109.070, 109.073, 109.092, 109.096, 109.098, 109.124, 109.175,
109.326, 419A.004, 419B.819, 419B.839 and 419B.875.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419A.004 is amended to read:
419A.004. As used in this chapter and ORS chapters 419B and
419C, unless the context requires otherwise:
(1) 'CASA Volunteer Program' means a program approved or
sanctioned by the juvenile court to recruit, train and supervise
volunteer persons to serve as court appointed special advocates.
(2) 'Child care center' means a residential facility for wards
or youth offenders that is licensed under the provisions of ORS
418.240.
(3) 'Community service' has the meaning given that term in ORS
137.126.
(4) 'Conflict of interest' means a person appointed to a local
citizen review board who has a personal or pecuniary interest in
a case being reviewed by that board.
(5) 'Counselor' means a juvenile department counselor.
(6) 'Court' means the juvenile court.
(7) 'Court appointed special advocate' or 'CASA' means a person
appointed by the court pursuant to a CASA Volunteer Program to
act as special advocate pursuant to ORS 419A.170.
(8) 'Court facility' has the meaning given that term in ORS
166.360.
(9) 'Department' means the Department of Human Services.
(10) 'Detention' or 'detention facility' means a facility
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063 for the detention of children, wards, youths or youth
offenders pursuant to a judicial commitment or order.
(11) 'Director' means the director of a juvenile department
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063.
(12) 'Guardian' means guardian of the person and not guardian
of the estate.
(13) 'Indian child' means any unmarried person less than 18
years of age who is:
(a) A member of an Indian tribe; or
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(b) Eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
(14) 'Juvenile court' means the court having jurisdiction of
juvenile matters in the several counties of this state.
(15) 'Local citizen review board' means the board specified by
ORS 419A.090 and 419A.092.
(16) 'Parent' means the biological or adoptive mother and the
legal { - or adoptive - } father of the child, ward, youth or
youth offender. { - A legal father includes: - }
{ - (a) A nonimpotent, nonsterile man who was cohabiting with
his wife, who is the mother of the child, ward, youth or youth
offender, at the time of conception; - }
{ - (b) A man married to the mother of the child, ward, youth
or youth offender at the time of birth, when there is no judgment
of separation and the presumption of paternity has not been
disputed; - }
{ - (c) A biological father who marries the mother of the
child, ward, youth or youth offender after the birth of the
child, ward, youth or youth offender; - }
{ - (d) A biological father who has established or declared
paternity through filiation proceedings or under ORS 416.400 to
416.470; and - }
{ - (e) A biological father who has, with the mother,
established paternity through a voluntary acknowledgment of
paternity under ORS 109.070 - } { + As used in this subsection,
'legal father' means:
(a) A man who has adopted the child, ward, youth or youth
offender or whose paternity has been established or declared
under ORS 109.070 or 416.400 to 416.470 or by a juvenile court;
and
(b) In cases in which the Indian Child Welfare Act applies, a
man who is a father under applicable tribal law + }.
(17) 'Permanent foster care' means an out-of-home placement in
which there is a long-term contractual foster care agreement
between the foster parents and the department that is approved by
the juvenile court and in which the foster parents commit to
raise a ward in substitute care or youth offender until the age
of majority.
(18) 'Planned permanent living arrangement' means an
out-of-home placement other than by adoption, placement with a
relative or placement with a legal guardian that is consistent
with the case plan and in the best interests of the ward.
(19) 'Public building' has the meaning given that term in ORS
166.360.
(20) 'Reasonable time' means a period of time that is
reasonable given a child or ward's emotional and developmental
needs and ability to form and maintain lasting attachments.
(21) 'Records' means any information in written form, pictures,
photographs, charts, graphs, recordings or documents pertaining
to a case.
(22) 'Resides' or 'residence,' when used in reference to the
residence of a child, ward, youth or youth offender, means the
place where the child, ward, youth or youth offender is actually
living or the jurisdiction in which wardship or jurisdiction has
been established.
(23) 'Restitution' has the meaning given that term in ORS
137.103.
(24) 'Serious physical injury' means:
(a) A serious physical injury as defined in ORS 161.015; or
(b) A physical injury that:
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(A) Has a permanent or protracted significant effect on a
child's daily activities;
(B) Results in substantial and recurring pain; or
(C) In the case of a child under 10 years of age, is a broken
bone.
(25) 'Shelter care' means a home or other facility suitable for
the safekeeping of a child, ward, youth or youth offender who is
taken into temporary custody pending investigation and
disposition.
(26) 'Short-term detention facility' means a facility
established under ORS 419A.050 (3) for holding children, youths
and youth offenders pending further placement.
(27) 'Substitute care' means an out-of-home placement directly
supervised by the department or other agency, including placement
in a foster family home, group home or other child caring
institution or facility. 'Substitute care' does not include care
in:
(a) A detention facility, forestry camp or youth correction
facility;
(b) A family home that the court has approved as a ward's
permanent placement, when a private child caring agency has been
appointed guardian of the ward and when the ward's care is
entirely privately financed; or
(c) In-home placement subject to conditions or limitations.
(28) 'Surrogate' means a person appointed by the court to
protect the right of the child, ward, youth or youth offender to
receive procedural safeguards with respect to the provision of
free appropriate public education.
(29) 'Tribal court' means a court with jurisdiction over child
custody proceedings and that is either a Court of Indian
Offenses, a court established and operated under the code of
custom of an Indian tribe or any other administrative body of a
tribe that is vested with authority over child custody
proceedings.
(30) 'Ward' means a person within the jurisdiction of the
juvenile court under ORS 419B.100.
(31) 'Youth' means a person under 18 years of age who is
alleged to have committed an act that is a violation, or, if done
by an adult would constitute a violation, of a law or ordinance
of the United States or a state, county or city.
(32) 'Youth care center' has the meaning given that term in ORS
420.855.
(33) 'Youth offender' means a person who has been found to be
within the jurisdiction of the juvenile court under ORS 419C.005
for an act committed when the person was under 18 years of age.
SECTION 2. ORS 419B.819 is amended to read:
419B.819. (1) A court may make an order establishing permanent
guardianship under ORS 419B.365 or terminating parental rights
under ORS 419B.500, 419B.502, 419B.504, 419B.506 or 419B.508 only
after service of summons and a true copy of the petition on the
parent, as provided in ORS 419B.812, 419B.823, 419B.824,
419B.827, 419B.830 and 419B.833. { + A putative father who
satisfies the criteria set out in ORS 419B.839 (1)(d) or 419B.875
(1)(c) also must be served with summons and a true copy of the
petition, unless a court of competent jurisdiction has found him
not to be the child or ward's legal father or he has filed a
petition for filiation that was dismissed and no appeal of the
judgment or order is pending. + }
(2) A summons under this section must require one of the
following:
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(a) That the parent appear personally before the court at the
time and place specified in the summons for a hearing on the
allegations of the petition;
(b) That the parent appear personally before the court at the
time and place specified in the summons to admit or deny the
allegations of the petition; or
(c) That the parent file a written answer to the petition
within 30 days from the date on which the parent is served with
the summons.
(3) If the court does not direct the type of response to be
required by the summons under subsection (2) of this section, the
summons shall require the parent to respond in the manner
authorized by subsection (2)(c) of this section.
(4) A summons under this section must contain:
(a) A statement that the rights of the parent are proposed to
be terminated or, if the petition seeks to establish a permanent
guardianship, that a permanent guardianship is proposed to be
established.
(b) A statement that, if the parent fails to appear at the time
and place specified in the summons or in an order under ORS
419B.820 or, if the summons requires the filing of a written
answer, fails to file the answer within the time provided, the
court may, without further notice and in the parent's absence,
terminate the parent's rights or grant the guardianship petition,
either on the date specified in the summons or order or on a
future date, and may take any other action that is authorized by
law.
(c) A notice that the parent has the right to be represented by
an attorney. The notice must be in substantially the following
form:
_________________________________________________________________
You have a right to be represented by an attorney. If you wish to
be represented by an attorney, please retain one as soon as
possible to represent you in this proceeding. If you cannot
afford to hire an attorney and you meet the state's financial
guidelines, you are entitled to have an attorney appointed for
you at state expense. To request appointment of an attorney to
represent you at state expense, you must contact the juvenile
court immediately. Phone _____ for further information.
_________________________________________________________________
(d) A statement that the parent has the responsibility to
maintain contact with the parent's attorney and to keep the
attorney advised of the parent's whereabouts.
(5) If the summons requires the parent to appear before the
court to admit or deny the allegations of the petition or
requires the parent to file a written answer to the petition, the
summons must advise the parent that, if the parent contests the
petition, the court:
(a) Will schedule a hearing on the allegations of the petition
and order the parent to appear personally; and
(b) May schedule other hearings related to the petition and
order the parent to appear personally.
(6) At a hearing, when the parent is required to appear
personally, or in the parent's written answer to the petition,
the parent shall inform the court and the petitioner of the
parent's current residence address, mailing address and telephone
number.
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(7) If a parent fails to appear for any hearing related to the
petition, or fails to file a written answer, as directed by
summons or court order under this section or ORS 419B.820, the
court, without further notice and in the parent's absence, may:
(a) Terminate the parent's rights or, if the petition seeks to
establish a permanent guardianship, grant the guardianship
petition either on the date specified in the summons or order or
on a future date; and
(b) Take any other action that is authorized by law.
SECTION 3. ORS 419B.839 is amended to read:
419B.839. (1) Summons in proceedings to establish jurisdiction
under ORS 419B.100 must be served on:
(a) The { - legal - } parents of the child without regard to
who has legal or physical custody of the child;
(b) The legal guardian of the child;
(c) A putative father of the child { - if he has provided or
offered to provide for the physical, emotional, custodial or
financial needs of the child in the previous six months or was
prevented from doing so by the mother of the child; - } { + who
satisfies the criteria set out in ORS 419B.875 (1)(c), except as
provided in subsection (4) of this section;
(d) A putative father of the child if notice of the initiation
of filiation or paternity proceedings was on file with the Center
for Health Statistics of the Department of Human Services prior
to the initiation of the juvenile court proceedings, except as
provided in subsection (4) of this section; + }
{ - (d) - } { + (e) + } The person who has physical custody
of the child, if the child is not in the physical custody of a
parent; and
{ - (e) - } { + (f) + } The child, if the child is 12 years
of age or older.
(2) If it appears to the court that the welfare of the child or
of the public requires that the child immediately be taken into
custody, the court may indorse an order on the summons directing
the officer serving it to take the child into custody.
(3) Summons may be issued requiring the appearance of any
person whose presence the court deems necessary.
{ + (4) Summons under subsection (1) of this section is not
required to be given to a putative father whom a court of
competent jurisdiction has found not to be the child's legal
father or who has filed a petition for filiation that was
dismissed if no appeal from the judgment or order is pending. + }
SECTION 4. ORS 419B.875 is amended to read:
419B.875. (1) Parties to proceedings in the juvenile court
under ORS 419B.100 and, except as provided in paragraph (h) of
this subsection, under ORS 419B.500 are:
(a) The child or ward;
(b) The { - legal - } parents or guardian of the child or
ward;
(c) A putative father of the child or ward { - if he has
provided or offered to provide for the physical, emotional,
custodial or financial needs of the child or ward in the previous
six months or was prevented from doing so by the mother of the
child or ward; - } { + who has demonstrated a direct and
significant commitment to the child or ward by assuming, or
attempting to assume, responsibilities normally associated with
parenthood, including but not limited to:
(A) Residing with the child or ward;
(B) Contributing to the financial support of the child or ward;
or
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(C) Establishing psychological ties with the child or ward; + }
(d) The state;
(e) The juvenile department;
(f) A court appointed special advocate, if appointed;
(g) The Department of Human Services or other child-caring
agency if the agency has temporary custody of the child or ward;
(h) An intervenor who is granted intervention under ORS
419B.116. An intervenor under this paragraph is not a party to a
proceeding under ORS 419B.500;
(i) A guardian ad litem appointed under subsection (2) of this
section; and
(j) The tribe in cases subject to the Indian Child Welfare Act
if the tribe has intervened pursuant to the Indian Child Welfare
Act.
(2) When a court determines that a parent or guardian, due to
mental or physical disability, cannot adequately act in the
parent's or guardian's interests or give direction to the
parent's or guardian's counsel on decisions the parent or
guardian must make, the court shall appoint some suitable person
to act as guardian ad litem for the parent or guardian.
(3) The rights of the parties include, but are not limited to:
(a) The right to notice of the proceeding and copies of the
petitions, answers, motions and other papers;
(b) The right to appear with counsel and, except for
intervenors under subsection (1)(h) of this section, to have
counsel appointed as otherwise provided by law;
(c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
(d) The right of appeal; and
(e) The right to request a hearing.
{ + (4) A putative father who satisfies the criteria set out
in subsection (1)(c) of this section shall be treated as a
parent, as that term is used in this chapter and ORS chapters
419A and 419C, until the court confirms his paternity or finds
that he is not the legal father of the child or ward.
(5) If no appeal from the judgment or order is pending, a
putative father whom a court of competent jurisdiction has found
not to be the child or ward's legal father or who has filed a
petition for filiation that was dismissed is not a party under
subsection (1) of this section. + }
{ - (4)(a) - } { + (6)(a) + } A person granted rights of
limited participation under ORS 419B.116 is not a party to a
proceeding under ORS 419B.100 or 419B.500 but has only those
rights specified in the order granting rights of limited
participation.
(b) Persons moving for or granted rights of limited
participation are not entitled to appointed counsel but may
appear with retained counsel.
{ - (5) - } { + (7) + } If a foster parent, preadoptive
parent or relative is currently providing care for a child or
ward, the Department of Human Services shall give the foster
parent, preadoptive parent or relative notice of a hearing
concerning the child or ward and the court shall give the person
an opportunity to be heard. Except when allowed to intervene, the
foster parent, preadoptive parent or relative providing care for
the child or ward is not considered a party to the juvenile court
proceeding solely because of notice and an opportunity to be
heard.
{ - (6) - } { + (8) + } When a legal grandparent of a child
or ward requests in writing and provides a mailing address, the
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Department of Human Services shall give the legal grandparent
notice of a hearing concerning the child or ward and the court
shall give the legal grandparent an opportunity to be heard.
Except when allowed to intervene, a legal grandparent is not
considered a party to the juvenile court proceeding solely
because of notice and an opportunity to be heard.
{ - (7) - } { + (9) + } Interpreters for parties and
persons granted rights of limited participation shall be
appointed in the manner specified by ORS 45.275 and 45.285.
SECTION 5. ORS 109.096 is amended to read:
109.096. (1) When the paternity of a child has not been
established under ORS 109.070, the putative father { - shall
be - } { + is + } entitled to reasonable notice in adoption
{ - , juvenile court, - } or other court proceedings concerning
the custody of the child { + , except for juvenile court
proceedings, + } if the petitioner knows, or by the exercise of
ordinary diligence should have known:
(a) That the child resided with the putative father at any time
during the 60 days immediately preceding the initiation of the
proceeding, or at any time since the child's birth if the child
is less than 60 days old when the proceeding is initiated; or
(b) That the putative father repeatedly has contributed or
tried to contribute to the support of the child during the year
immediately preceding the initiation of the proceeding, or during
the period since the child's birth if the child is less than one
year old when the proceeding is initiated.
(2) Except as provided in subsection (3) or (4) of this
section, a verified statement of the mother of the child or of
the petitioner, or an affidavit of another person with knowledge
of the facts, filed in the proceeding and asserting that the
child has not resided with the putative father, as provided in
subsection (1)(a) of this section, and that the putative father
has not contributed or tried to contribute to the support of the
child, as provided in subsection (1)(b) of this section,
{ - shall be - } { + is + } sufficient proof to enable the
court to grant the relief sought without notice to the putative
father.
(3) The putative father { - shall be - } { + is + }
entitled to reasonable notice in a proceeding for the adoption of
the child if notice of the initiation of filiation proceedings as
required by ORS 109.225 was on file with the Center for Health
Statistics of the Department of Human Services prior to the
child's being placed in the physical custody of a person or
persons for the purpose of adoption by them. If the notice of the
initiation of filiation proceedings was not on file at the time
of the placement, the putative father { - shall be - } { +
is + } barred from contesting the adoption proceeding.
(4) Except as otherwise provided in subsection (3) of this
section, the putative father { - shall be - } { + is + }
entitled to reasonable notice in { - juvenile court or
other - } court proceedings { + concerning the custody of the
child, other than juvenile court proceedings, + } if notice of
the initiation of filiation proceedings as required by ORS
109.225 was on file with the Center for Health Statistics prior
to the initiation of the { - juvenile court or other court - }
proceedings.
(5) Notice under this section { - shall not be - } { + is
not + } required to be given to a putative father who was a party
to filiation proceedings under ORS 109.125 { - which either - }
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{ + that + } were dismissed or resulted in a finding that he
was not the father of the child.
(6) The notice required under this section shall be given in
the manner provided in ORS 109.330.
(7) No notice given under this section need disclose the name
of the mother of the child.
(8) A putative father has the primary responsibility to protect
his rights, and nothing in this section shall 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 a petitioner in the proceeding with
respect to matters specified in subsections (1) to (5) of this
section.
SECTION 6. ORS 109.098 is amended to read:
109.098. (1) If a putative father of a child by due appearance
in a proceeding of which he is entitled to notice under ORS
109.096 objects to the relief sought, the court:
(a) May stay the adoption { - , juvenile court - } or other
court proceeding to await the outcome of the filiation
proceedings only if notice of the initiation of filiation
proceedings was on file as required by ORS 109.096 (3) or (4).
(b) Shall, if filiation proceedings are not pending, inquire as
to the paternity of the child, the putative father's past
endeavors to fulfill his obligation to support the child and to
contribute to the pregnancy-related medical expenses, the period
that the child has lived with the putative father, the putative
father's fitness to care for and rear the child and whether the
putative father is willing to be declared the father of the child
and to assume the responsibilities of a father.
(2) If after inquiry under subsection (1)(b) of this section
the court finds:
(a) That the putative father is the father of the child and is
fit and willing to assume the responsibilities of a father, it
shall have the power:
(A) Upon the request of the putative father, to declare his
paternity and to certify the fact of paternity in the manner
provided in ORS 109.094; and
(B) To award custody of the child to the mother or the father
as may be in the best interests of the child, or to take any
other action which the court may take if the parents are or were
married to each other.
(b) That the putative father is not the father of the child, it
may grant the relief sought in the proceeding without the
putative father's consent.
(c) That the putative father is the natural father of the child
but is not fit or willing to assume the responsibilities of a
father, it may grant the relief sought in the proceeding or any
other relief that the court deems to be in the best interests of
the child, notwithstanding the father's objection.
(3) If a putative father of a child is given the notice of a
proceeding required by ORS 109.096 and he fails to enter due
appearance and to object to the relief sought therein within the
time specified in the notice, the court may grant the relief
sought without the putative father's consent.
SECTION 7. { + Section 8 of this 2005 Act is added to and made
a part of ORS chapter 419B. + }
SECTION 8. { + (1) If in any proceeding under ORS 419B.100 or
419B.500 the juvenile court determines that the child or ward has
no legal father or that paternity is disputed as allowed in ORS
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109.070, the court may enter a judgment of paternity or a
judgment of nonpaternity in compliance with the provisions of ORS
109.070, 109.124 to 109.230, 109.250 to 109.262 and 109.326.
(2) Before entering a judgment under subsection (1) of this
section, the court must find that adequate notice and an
opportunity to be heard was provided to:
(a) The parties to the proceeding;
(b) The man alleged or claiming to be the child or ward's
father; and
(c) The Administrator of the Division of Child Support of the
Department of Justice or the branch office providing support
services to the county in which the court is located.
(3) When appropriate, the court shall inform a man before the
court claiming to be the father of a child or ward that paternity
establishment services may be available through the administrator
if the child or ward:
(a) Is a child born out of wedlock;
(b) Has not been placed for adoption; and
(c) Has no legal father.
(4) As used in this section:
(a) 'Administrator' has the meaning given that term in ORS
25.010.
(b) 'Child born out of wedlock' has the meaning given that term
in ORS 109.124.
(c) 'Legal father' has the meaning given that term in ORS
419A.004 (16). + }
SECTION 9. { + (1) As used in this section, 'legal father '
includes a man whose paternity has been established under ORS
109.070 (1) and a man who has been ordered to pay child support.
(2) After paternity has been established under ORS 109.070 (1),
if no blood tests, as defined in ORS 109.251, were performed to
establish paternity, the mother or the legal father may petition
the court to reopen the issue of paternity. The petitioner:
(a) Must file the petition within two years after a voluntary
acknowledgment of paternity is filed with the State Registrar of
the Center for Health Statistics;
(b) Must file the petition within two years after paternity is
established as a result of a default order or a default judgment
that is no longer subject to appeal; or
(c) May file the petition at any time if the legal father is
the presumed father under ORS 109.070.
(3) The petition must contain:
(a) An affidavit executed by the petitioner stating that the
petitioner has discovered new evidence since paternity was
established or that the legal father is the presumed father and
the petitioner has not had an opportunity previously to challenge
the paternity; and
(b) The results of blood tests, administered within 90 days
before the petition is filed, that show a zero percent
probability that the legal father is the biological father of the
child.
(4) Upon receipt of a petition, the court:
(a) May order the mother, child and legal father to submit to
blood tests as provided in ORS 109.250 to 109.262 if the blood
test results submitted with the petition were not properly
conducted or documented; or
(b) Shall order the mother, child and legal father to submit to
blood tests as provided in ORS 109.250 to 109.262 upon the motion
of a party.
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(5) Notwithstanding ORS 109.252, the petitioner shall pay any
costs for blood tests ordered under subsection (4) of this
section.
(6) The provisions of ORS 109.155 apply to a proceeding under
this section.
(7) The court shall make a determination of nonpaternity if the
court finds, based on all the evidence as provided in ORS
109.258, that:
(a) The blood tests were properly conducted and documented;
(b) The legal father is not the biological father of the child;
(c) The legal father has not adopted the child;
(d) The child was not conceived by artificial insemination
while the legal father and the mother were married;
(e) The petitioner has not acted to prevent the biological
father from asserting his parental rights;
(f) The petitioner, with knowledge that the legal father is not
the biological father, has not:
(A) Taken any action to affirm the legal father's parentage of
the child; and
(B) Failed to respond to a judicial or administrative
proceeding to establish paternity after receipt of proper notice
and an opportunity to be heard; and
(g) In the absence of fraud, granting the petition would not
cause undue harm to the child.
(8) The petitioner has the burden of proving subsection (7)(a)
to (f) of this section. However:
(a) Except as provided in paragraph (b) of this subsection,
when a petitioner fails to prove subsection (7)(f) of this
section, the court may nevertheless grant the petition and enter
a judgment of nonpaternity if the court finds that the judgment
would not cause undue harm to the child.
(b) When a petitioner has signed a voluntary acknowledgment of
paternity and fails to prove subsection (7)(f) of this section,
the court may nevertheless grant the petition and enter a
judgment of nonpaternity if the court finds that:
(A) The petitioner signed the acknowledgment without knowledge
that the legal father was not the biological father of the child;
and
(B) The judgment would not cause undue harm to the child.
(9)(a) A child support obligation ordered before a petition is
filed under this section continues until a judgment of
nonpaternity is entered. However, upon a showing of good cause,
the court may suspend the obligation if:
(A) To do so would not cause undue harm to the child; and
(B) The petitioner has not signed a voluntary acknowledgment of
paternity.
(b) In a judgment of nonpaternity, the court shall vacate any
ongoing child support obligation of the legal father and may
vacate any past due support. Child support payments made before
entry of a judgment of nonpaternity may not be returned to the
payer.
(c) This section does not give a legal father a cause of action
against the mother or biological father for reimbursement of
child support paid or accrued before the entry of the judgment of
nonpaternity.
(10) If the court denies the petition, the court shall award
reasonable attorney fees to the nonpetitioning parties.
(11) The authority to petition the court under this section
expires on the death of the legal father of a child. The personal
Enrolled Senate Bill 234 (SB 234-A) Page 10
representative of the legal father's estate may not file a
petition under this section. + }
SECTION 10. { + Section 9 of this 2005 Act is repealed on
January 2, 2008. + }
SECTION 11. 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) - } { + subsections
(2) to (4) + } 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) - } { + (2) + } A party to a voluntary
acknowledgment of paternity may rescind the acknowledgment within
the earlier of:
{ - (A) - } { + (a) + } Sixty days after filing the
{ - voluntary - } acknowledgment { - of paternity - } ; or
{ - (B) - } { + (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 - } { + paragraph + }, the date of a
proceeding is the date on which an order is entered in the
proceeding.
{ - (b)(A) - } { + (3)(a) + } A signed voluntary
acknowledgment of paternity filed in this state may be
challenged { + in circuit court + }:
{ - (i) - } { + (A) + } { - At any time - } After the
60-day period { + in a proceeding under section 9 of this 2005
Act.
(B) At any time after the 60-day period + }on the basis of
fraud, duress or { + a + } material mistake of fact { - . The
party bringing the challenge has the burden of proof. - } { +
by:
(i) A party to the acknowledgment;
(ii) The child named in the acknowledgment; or
(iii) The Department of Human Services or the administrator, as
defined in ORS 25.010, if the child named in the acknowledgment
is in the care and custody of the department under ORS chapter
419B and the department or the administrator reasonably believes
Enrolled Senate Bill 234 (SB 234-A) Page 11
that the acknowledgment was obtained through fraud, duress or a
material mistake of fact. + }
{ - (ii) - } { + (C) + } Within one year after the
{ - voluntary - } acknowledgment has been filed { - , unless
the provisions of paragraph (c) of this subsection apply - } .
{ + Subsection (4) of this section applies to a challenge under
this subparagraph. + } { - No - } { + A + } challenge to the
{ - voluntary - } acknowledgment { - may be - } { + is
not + } allowed more than one year after the { - voluntary - }
acknowledgment has been filed, unless the provisions of
{ - sub-subparagraph (i) of this - } subparagraph { + (A) or
(B) of this paragraph + } apply.
{ - (B) - } { + (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) The party challenging an acknowledgment under this
subsection has the burden of proof. + }
{ - (c) - } { + (4)(a) + } { - No later than - }
{ + Within + } 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 { + , the child
named in 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 - }
{ + mother, + } the child { + and the male party + } submit to
{ - genetic parentage tests - } { + blood tests as provided in
ORS 109.250 to 109.262 + }.
{ - (d) - } { + (b) + } If the results of the tests
{ + performed under paragraph (a) of this subsection + } exclude
the male party as a possible father of the child, { + or if the
court determines under subsection (3) of this section that the
male party is not the father of the child, + } a party { - or
the state, if child support enforcement services are being
provided under ORS 25.080, - } { + to the challenge + } may
apply to the court for { - an order - } { + a judgment + } of
nonpaternity. { + The party that applied for the judgment shall
send a certified true copy of the judgment to the State Registrar
of the Center for Health Statistics and to the Department of
Justice as the state disbursement unit. + } Upon receipt of
{ - an order - } { + a judgment + } of nonpaternity, the
{ - Director of Human Services - } { + state registrar + }
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.
{ + (c) Child support payments made before entry of a
judgment of nonpaternity may not be returned to the payer. + }
{ - (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 12. 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)(c), (d), (e) or
(f) + }
{ - (1)(d), (e), (f) or (g) - } or 416.400 to 416.470 shall be
included in the order, judgment or other declaration establishing
paternity.
Enrolled Senate Bill 234 (SB 234-A) Page 12
SECTION 13. 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 14. 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 15. 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 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
Enrolled Senate Bill 234 (SB 234-A) Page 13
in creating and implementing parenting plans under ORS 107.425
(3).
SECTION 16. 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 husband's parental rights should not be
terminated shall 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 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 required and the husband's consent,
authorization or waiver shall not be 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 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.
SECTION 17. ORS 109.070, as amended by section 11 of this 2005
Act, is amended to read:
109.070. (1) The paternity of a person may be established as
follows:
Enrolled Senate Bill 234 (SB 234-A) Page 14
{ + (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 is conclusively presumed to be the child of her husband,
whether or not the marriage of the husband and wife may be
void. + }
{ - (a) - } { + (b) + } A child born in wedlock, there
being no judgment of separation from bed or board, 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 is a disputable
presumption.
{ - (b) - } { + (c) + } By the marriage of the parents of a
child after birth of the child.
{ - (c) - } { + (d) + } By filiation proceedings.
{ - (d) - } { + (e) + } 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 subsections (2) to (4) of this section,
this filing establishes paternity for all purposes.
{ - (e) - } { + (f) + } By having established paternity
through a voluntary acknowledgment of paternity process in
another state.
{ - (f) - } { + (g) + } By paternity being established or
declared by other provision of law.
(2) A party to a voluntary acknowledgment of paternity may
rescind the acknowledgment within the earlier of:
(a) Sixty days after filing the acknowledgment; 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. For the
purposes of this paragraph, the date of a proceeding is the date
on which an order is entered in the proceeding.
(3)(a) A signed voluntary acknowledgment of paternity filed in
this state may be challenged in circuit court:
(A) { + At any time + } after the 60-day period { - in a
proceeding under section 9 of this 2005 Act. - }
{ - (B) At any time after the 60-day period - } on the basis
of fraud, duress or a material mistake of fact { + . The party
bringing the challenge has the burden of proof. + } { - by: - }
{ - (i) A party to the acknowledgment; - }
{ - (ii) The child named in the acknowledgment; or - }
{ - (iii) The Department of Human Services or the
administrator, as defined in ORS 25.010, if the child named in
the acknowledgment is in the care and custody of the department
under ORS chapter 419B and the department or the administrator
reasonably believes that the acknowledgment was obtained through
fraud, duress or a material mistake of fact. - }
{ - (C) - } { + (B) + } Within one year after the
acknowledgment has been filed { + , unless the provisions of
subsection (4)(a) of this section apply + }. { - Subsection (4)
of this section applies to a challenge under this
subparagraph. - } A challenge to the acknowledgment is not
allowed more than one year after the acknowledgment has been
filed, unless the provisions of subparagraph (A) { - or (B) - }
of this paragraph apply.
(b) Legal responsibilities arising from the acknowledgment,
including child support obligations, may not be suspended during
the challenge, except for good cause.
{ - (c) The party challenging an acknowledgment under this
subsection has the burden of proof. - }
Enrolled Senate Bill 234 (SB 234-A) Page 15
(4)(a) Within one year after a voluntary acknowledgment of
paternity form is filed in this state { + and if blood tests, as
defined in ORS 109.251, have not been previously completed + }, a
party to the acknowledgment { - , the child named in 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 mother, the child and the male party
submit to blood tests as provided in ORS 109.250 to 109.262.
(b) If the results of the tests performed under paragraph (a)
of this subsection exclude the male party as a possible father of
the child, { - or if the court determines under subsection (3)
of this section that the male party is not the father of the
child, - } a party { - to the challenge - } { + or the state,
if child support enforcement services are being provided under
ORS 25.080, + } may apply to the court for a judgment of
nonpaternity. The party that applied for the judgment shall send
a certified true copy of the judgment to the State Registrar of
the Center for Health Statistics and to the Department of Justice
as the state disbursement unit. Upon receipt of a judgment of
nonpaternity, the state registrar shall correct any records
maintained by the state registrar that indicate that the male
party is the parent of the child.
{ - (c) Child support payments made before entry of a
judgment of nonpaternity may not be returned to the payer. - }
{ + (c) The state Child Support Program shall pay any costs
for blood tests subject to recovery from the party who requested
the tests. + }
SECTION 18. ORS 109.073, as amended by section 12 of this 2005
Act, 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)(c), (d), (e) or
(f) - } { + (1)(d), (e), (f) or (g) + } or 416.400 to 416.470
shall be included in the order, judgment or other declaration
establishing paternity.
SECTION 19. ORS 109.092, as amended by section 13 of this 2005
Act, 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)(d) - }
{ + (1)(e) + } 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.
Enrolled Senate Bill 234 (SB 234-A) Page 16
SECTION 20. ORS 109.124, as amended by section 14 of this 2005
Act, 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 21. ORS 109.175, as amended by section 15 of this 2005
Act, 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)(d) - } { + (1)(e) + }, 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 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 22. ORS 109.326, as amended by section 16 of this 2005
Act, 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 husband's parental rights should not be
terminated shall be served on him in the manner provided by ORS
109.330 if:
Enrolled Senate Bill 234 (SB 234-A) Page 17
(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 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)(a) - } { + (1)(b) + }, notice to the husband pursuant
to ORS 109.330 shall not be required and the husband's consent,
authorization or waiver shall not be 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 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.
SECTION 23. { + The amendments to ORS 109.070, 109.073,
109.092, 109.124, 109.175 and 109.326 by sections 17 to 22 of
this 2005 Act become operative on January 2, 2008. + }
----------
Passed by Senate May 4, 2005
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 20, 2005
...........................................................
Speaker of House
Enrolled Senate Bill 234 (SB 234-A) Page 18
Received by Governor:
......M.,............., 2005
Approved:
......M.,............., 2005
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2005
...........................................................
Secretary of State
Enrolled Senate Bill 234 (SB 234-A) Page 19