74th OREGON LEGISLATIVE ASSEMBLY--2007 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 1176-2
A-Engrossed
House Bill 2382
Ordered by the House May 3
Including House Amendments dated May 3
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon Law Commission)
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.
{ - Modifies process for challenging voluntary acknowledgment
of paternity. - }
{ + Modifies provisions relating to presumptions of
paternity, challenge of acknowledgment of paternity and paternity
judgments. + }
A BILL FOR AN ACT
Relating to paternity; creating new provisions; and amending ORS
107.425, 109.070, 109.103, 109.124, 109.125, 109.155, 109.326,
416.443, 419B.819 and 419B.875.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 109.070, as amended by section 17, chapter 160,
Oregon Laws 2005, 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 is conclusively presumed to be the child of her husband,
whether or not the marriage of the husband and wife may be
void. - }
{ - (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. - }
{ + (a) A man is rebuttably presumed to be the father of a
child born to a woman if he and the woman were married to each
other at the time of the child's birth, without a judgment of
separation, regardless of whether the marriage is void.
(b) A man is rebuttably presumed to be the father of a child
born to a woman if he and the woman were married to each other
and the child is born within 300 days after the marriage is
terminated by death, annulment or dissolution or after entry of a
judgment of separation. + }
(c) By the marriage of the parents of a child after
{ + the + } birth of the child { + , and the parents filing with
the State Registrar of the Center for Health Statistics the
voluntary acknowledgment of paternity form as provided for by ORS
432.287 + }.
(d) By filiation proceedings.
(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) - } { + (4) to (7) + } of this
section, this filing establishes paternity for all purposes.
(f) By having established paternity through a voluntary
acknowledgment of paternity process in another state.
(g) By paternity being established or declared by other
provision of law.
{ + (2) The paternity of a child established under subsection
(1)(a) or (c) of this section may be challenged in an action or
proceeding by the husband or wife. The paternity may not be
challenged by a person other than the husband or wife as long as
the husband and wife are married and cohabiting, unless the
husband and wife consent to the challenge.
(3) If the court finds that it is just and equitable, giving
consideration to the interests of the parties and the child, the
court shall admit evidence offered to rebut the presumption of
paternity in subsection (1)(a) or (b) of this section. + }
{ - (2) - } { + (4)(a) + } A party to a voluntary
acknowledgment of paternity may rescind the acknowledgment within
the earlier of:
{ - (a) - } { + (A) + } Sixty days after filing the
acknowledgment; 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. For the purposes of this { - paragraph - }
{ + subparagraph + }, the date of a proceeding is the date on
which an order is entered in the proceeding.
{ + (b) To rescind the acknowledgment, the party shall sign
and file with the State Registrar of the Center for Health
Statistics a written document declaring the rescission. + }
{ - (3)(a) - } { + (5)(a) + } A signed voluntary
acknowledgment of paternity filed in this state may be challenged
{ + and set aside + } in circuit court { - : - }
{ - (A) - } at any time after the 60-day period
{ + referred to in subsection (4) of this section + } on the
basis of fraud, duress or a material mistake of fact. { - The
party bringing the challenge has the burden of proof. - }
{ + (b) The challenge may be brought by:
(A) A party to the acknowledgment;
(B) The child named in the acknowledgment; or
(C) 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 signed because of fraud, duress or a
material mistake of fact.
(c) The challenge shall be initiated by filing a petition with
the circuit court. Unless otherwise specifically provided by law,
the challenge shall be conducted pursuant to the Oregon Rules of
Civil Procedure.
(d) The party bringing the challenge has the burden of
proof. + }
{ - (B) Within one year after the acknowledgment has been
filed, unless the provisions of subsection (4)(a) of this section
apply. A challenge to the acknowledgment is not allowed more
than one year after the acknowledgment has been filed, unless the
provisions of subparagraph (A) of this paragraph apply. - }
{ - (b) - } { + (e) + } Legal responsibilities arising from
the acknowledgment, including child support obligations, may not
be suspended during the challenge, except for good cause.
{ + (f) If the court finds by a preponderance of the evidence
that the acknowledgment was signed because of fraud, duress or
material mistake of fact, the court shall set aside the
acknowledgment unless, giving consideration to the interests of
the parties and the child, the court finds that setting aside the
acknowledgment would be substantially inequitable.
(6) 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 completed, a party to the
acknowledgment, or the department if the child named in the
acknowledgment is in the care and custody of the department under
ORS chapter 419B, may apply to the administrator for an order for
blood tests in accordance with ORS 416.443.
(7)(a) A voluntary acknowledgment of paternity is not valid if,
before the party signed the acknowledgment:
(A) The party signed a consent to the adoption of the child by
another individual;
(B) The party signed a document relinquishing the child to a
public or private child-caring agency;
(C) The party's parental rights were terminated by a court; or
(D) In an adjudication, the party was determined not to be the
biological parent of the child.
(b) Notwithstanding any provision of subsection (1)(c) or (e)
of this section or ORS 432.287 to the contrary, an acknowledgment
signed by a party described in this subsection and filed with the
State Registrar of the Center for Health Statistics does not
establish paternity and is void. + }
{ - (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 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, a party 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) The state Child Support Program shall pay any costs
for blood tests subject to recovery from the party who requested
the tests. - }
SECTION 2. ORS 109.103 is amended to read:
109.103. (1) If a child is born { - out of wedlock - }
{ + to an unmarried woman + } and paternity has been
established { + under ORS 109.070, or if a child is born to a
married woman by a man other than her husband and the man's
paternity has been established under ORS 109.070 + }, either
parent may initiate a civil proceeding to determine the custody
or support of { + , or parenting time with, + } the child. The
proceeding shall be brought in the circuit court of the county in
which the child resides or is found or in the circuit court of
the county in which either parent resides. The parents have the
same rights and responsibilities regarding the custody and
support of { + , and parenting time with, + } their child that
married or divorced parents would have, and the provisions of ORS
107.093 to 107.425 that relate to { - the custody or support of
children - } { + custody, support and parenting time + } apply
to the proceeding.
(2) A parent may initiate the proceeding by filing with the
court a petition setting forth the facts and circumstances upon
which the parent relies. The parent shall state in the petition,
to the extent known:
(a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the child,
including one brought under ORS 109.100, 109.165, 125.025,
416.400 to 416.465, 419B.400 or 419C.590 or ORS chapter 110; and
(b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the child.
(3) The parent shall include with the petition a certificate
regarding any pending support proceeding and any existing support
order. The parent shall use a certificate that is in a form
established by court rule and include information required by
court rule and subsection (2) of this section.
(4) When a parent initiates a proceeding under this section and
the child support rights of one of the parents or of the child
have been assigned to the state, the parent initiating the
proceeding shall serve, by mail or personal delivery, a copy of
the petition on the Administrator of the Division of Child
Support or on the branch office providing support services to the
county in which the suit is filed.
SECTION 3. ORS 109.124, as amended by section 20, chapter 160,
Oregon Laws 2005, 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 - } { + woman + } 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 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 - } { + woman + } 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 - } { + man + } 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) The minor child by a guardian ad litem.
(2) Proceedings shall be 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) - } { + (1)(a), (b), (c) or
(e) + } of this section:
(A) The name of the mother of the child born out of wedlock or
the { - female - } { + woman + } pregnant with a child who
may be born out of wedlock;
{ + (B) The name of the mother's husband if the child is
alleged to be a child born to a married woman by a man other than
her husband; + }
{ - (B) - } { + (C) + } Facts showing the petitioner's
status to initiate proceedings;
{ - (C) - } { + (D) + } A statement that a respondent is
the father;
{ - (D) - } { + (E) + } The probable time or period of time
during which conception took place; and
{ - (E) - } { + (F) + } A statement of the specific relief
sought.
(b) If the initiating party is a { - person - } { + man + }
specified in subsection (1)(d) of this section:
(A) The name of the mother of the child born out of wedlock or
the { - female - } { + woman + } pregnant with a child who
may be born out of wedlock;
{ + (B) The name of the mother's husband if the child is
alleged to be a child born to a married woman by a man other than
her husband; + }
{ - (B) - } { + (C) + } 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) - } { + (D) + } The probable time or period of time
during which conception took place; and
{ - (D) - } { + (E) + } 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, 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.
{ + (5) A man whose paternity of a child has been established
under ORS 109.070 is a necessary party to proceedings initiated
under this section unless the paternity has been disestablished
before the proceedings are initiated. + }
SECTION 5. ORS 109.155 is amended to read:
109.155. (1) The court, in a private hearing, shall first
determine the issue of paternity. If the respondent admits the
paternity, { - such - } { + the + } admission shall be
reduced to writing, verified by the respondent and filed with the
court. If the paternity is denied, corroborating evidence, in
addition to the testimony of the parent or expectant parent,
shall be required.
(2) If the court finds, from a preponderance of the evidence,
that the petitioner or the respondent is the father of the child
who has been, or who may be born out of wedlock, the court shall
then proceed to a determination of the appropriate relief to be
granted. The court may approve any settlement agreement reached
between the parties and incorporate the { - same - }
{ + agreement + } into any judgment rendered, and { - it - }
{ + the court + } may order such investigation or the production
of such evidence as { - it - } { + the court + } deems
appropriate to establish a proper basis for relief.
(3) The court, in its discretion, may postpone the hearing from
time to time to facilitate any investigation or the production of
such evidence as it deems appropriate.
(4) The court { - shall have the power to - } { + may + }
order either parent to pay such sum as { - it - } { + the
court + } deems appropriate for the past and future support and
maintenance of the child during { - its - } { + the
child's + } minority and while the child is attending school, as
defined in ORS 107.108, and the reasonable and necessary expenses
incurred or to be incurred in connection with prenatal care,
expenses attendant with the birth and postnatal care. The court
may grant the prevailing party reasonable costs of suit, which
may include expert witness fees, and reasonable attorney fees at
trial and on appeal. The provisions of ORS 107.108 apply to an
order entered under this section for the support of a child
attending school.
(5) An affidavit certifying the authenticity of documents
substantiating expenses set forth in subsection (4) of this
section is prima facie evidence to establish the authenticity of
{ - such - } { + the + } documents.
(6)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under this section, the court may enforce
the terms set forth in a stipulated judgment of paternity signed
by the parties, a judgment of paternity resulting from a
settlement on the record or a judgment of paternity incorporating
a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce a judgment,
including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
set aside, alter or modify a judgment under ORS 109.165 or to
seek enforcement of an ancillary agreement to the judgment.
{ + (7) If a man's paternity of a child has been established
under ORS 109.070 and the paternity has not been disestablished
before proceedings are initiated under ORS 109.125, the court may
not render a judgment under ORS 109.124 to 109.230 establishing
another man's paternity of the child unless the judgment also
disestablishes the paternity established under ORS 109.070. + }
SECTION 6. ORS 109.326, as amended by section 22, chapter 160,
Oregon Laws 2005, 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 is not 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 constitutes
competent evidence before the court making the determination.
(3) Before making the determination of nonpaternity, the
petitioner shall serve on the husband a summons and a true copy
of a motion and order to show cause why { - the husband's
parental rights should not be terminated - } { + a judgment of
nonpaternity should not be entered + } 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) When the petitioner is required to serve the husband with a
summons and a motion and order to show cause under subsection (3)
of this section, service must be made in the manner provided in
ORCP 7 D and E, except as provided in subsection (6) of this
section. Service must be proved as required in ORCP 7 F. The
summons and the motion and order to show cause need not contain
the names of the adoptive parents.
(5) A summons under subsection (3) of this section must
contain:
(a) A statement that if the husband fails to file a written
answer to the motion and order to show cause within the time
provided, the court, without further notice and in the husband's
absence, may take any action that is authorized by law, including
but not limited to { - terminating the husband's parental
rights and - } entering a judgment of nonpaternity on the date
the answer is required or on a future date.
(b) A statement that:
(A) The husband must file with the court a written answer to
the motion and order to show cause within 30 days after the date
on which the husband is served with the summons or, if service is
made by publication or posting under ORCP 7 D(6), within 30 days
from the date of last publication or posting.
(B) In the answer, the husband must inform the court and the
petitioner of the husband's telephone number or contact telephone
number and the husband's current residence, mailing or contact
address in the same state as the husband's home. The answer may
be in substantially the following form:
_________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF ______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
______
, )
Petitioner, )NO.___
)
)ANSWER
and )
)
______
, )
Respondent. )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
? ? I consent to the { - termination of any parental rights
that I may have - } { + entry of a judgment of
nonpaternity + }.
? ? I do not consent to the { - termination of my parental
rights. The court should not order the termination of my parental
rights - } { + entry of a judgment of nonpaternity. The court
should not enter a judgment of nonpaternity + } for the following
reasons:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________
____________
Signature
DATE:______________
ADDRESS OR CONTACT ADDRESS:
______________
______________
TELEPHONE OR CONTACT TELEPHONE:
______________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(c) A notice that, if the husband answers the motion and order
to show cause, the court:
(A) Will schedule a hearing to address the motion and order to
show cause and, if appropriate, the adoption petition;
(B) Will order the husband to appear personally; and
(C) May schedule other hearings related to the petition and may
order the husband to appear personally.
(d) A notice that the husband 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 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 circuit court immediately. Phone ____ for
further information.
_________________________________________________________________
(e) A statement that the husband has the responsibility to
maintain contact with the husband's attorney and to keep the
attorney advised of the husband's whereabouts.
(6) A husband who is served with a summons and a motion and
order to show cause under this section shall file with the court
a written answer to the motion and order to show cause within 30
days after the date on which the husband is served with the
summons or, if service is made by publication or posting under
ORCP 7 D(6), within 30 days from the date of last publication or
posting. In the answer, the husband shall inform the court and
the petitioner of the husband's telephone number or contact
telephone number and current address, as defined in ORS 25.011.
The answer may be in substantially the form described in
subsection (5) of this section.
(7) If the husband requests the assistance of appointed counsel
and the court determines that the husband is financially
eligible, the court shall appoint an attorney to represent the
husband at state expense. Appointment of counsel under this
subsection is subject to ORS 135.055, 151.216 and 151.219. The
court may not substitute one appointed counsel for another except
pursuant to the policies, procedures, standards and guidelines
adopted under ORS 151.216.
(8) If the husband files an answer as required under subsection
(6) of this section, the court, by oral order made on the record
or by written order provided to the husband in person or mailed
to the husband at the address provided by the husband, shall:
(a) Inform the husband of the time, place and purpose of the
next hearing or hearings related to the motion and order to show
cause or the adoption petition;
(b) Require the husband to appear personally at the next
hearing or hearings related to the motion and order to show cause
or the adoption petition; and
(c) Inform the husband that, if the husband fails to appear as
ordered for any hearing related to the motion and order to show
cause or the adoption petition, the court, without further notice
and in the husband's absence, may take any action that is
authorized by law, including but not limited to { - terminating
the husband's parental rights and - } entering a judgment of
nonpaternity on the date specified in the order or on a future
date, without the consent of the husband.
(9) If a husband fails to file a written answer as required in
subsection (6) of this section or fails to appear for a hearing
related to the motion and order to show cause or the petition as
directed by court order under this section, the court, without
further notice to the husband and in the husband's absence, may
take any action that is authorized by law, including but not
limited to { - terminating the husband's parental rights
and - } entering a judgment of nonpaternity.
(10) 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.
(11) Notwithstanding { - the provision of - } ORS 109.070
{ - (1)(b) - } { + (1)(a) + }, service of a summons and a
motion and order to show cause on the husband under subsection
(3) of this section is not required and the husband's consent,
authorization or waiver is not required in adoption proceedings
concerning the child unless the husband has met the requirements
of subsection (3)(a), (b) or (c) of this section.
(12) 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.
(13) 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 order or
general judgment, as defined in ORS 18.005, fraud on the part of
the petitioner with respect to the matters specified in
subsection (10)(a), (b), (c) or (d) of this section.
SECTION 7. ORS 416.443 is amended to read:
416.443. { + (1) As used in this section, 'blood tests' has
the meaning given that term in ORS 109.251. + }
{ - (1) - } { + (2) + } 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 have
not + } been completed, a party may apply to the administrator to
have the issue of paternity reopened { + and for an order for
blood tests + }.
{ + (3) No later than one year after a voluntary
acknowledgment of paternity is filed in this state and if blood
tests have not been completed, a party to the acknowledgment, or
the Department of Human Services if the child named in the
acknowledgment is in the care and custody of the department under
ORS chapter 419B, may apply to the administrator for services
under ORS 25.080 and for an order for blood tests.
(4) + } 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 test - } { + blood tests + }.
{ - (2) - } { + (5) + } If a party refuses to comply with
an order under subsection { - (1) - } { + (4) + } of this
section, the issue of paternity shall { + , upon the motion of
the administrator, + } be resolved against that party by an
{ - appropriate - } order of the court { - upon the motion of
the administrator. - } { + either affirming or setting aside
the order establishing paternity or the voluntary acknowledgement
of paternity.
(6) If the results of the blood tests exclude the male party as
the biological father of the child, the administrator may file a
motion with the court for an order setting aside the order
establishing paternity or the voluntary acknowledgment of
paternity and for a judgment of nonpaternity.
(7) + } Support paid before an order { - is vacated - }
{ + establishing paternity or a voluntary acknowledgment of
paternity is set aside + } under this section { - shall - }
{ + may + } not be returned to the payer.
{ + (8) The administrator shall send a court-certified true
copy of a judgment of nonpaternity to the State Registrar of the
Center for Health Statistics. Upon receipt of the judgment, the
state registrar shall correct any records maintained by the state
registrar that indicate that the male party is the parent of the
child.
(9) The Child Support Program shall pay any state registrar
fees and any costs for blood tests ordered under this section,
subject to recovery from the party who requested the tests. + }
SECTION 8. { + Section 9 of this 2007 Act is added to and made
a part of ORS chapter 109. + }
SECTION 9. { + (1) As used in this section:
(a) 'Blood tests' has the meaning given that term in ORS
109.251.
(b) 'Paternity judgment' means a judgment or administrative
order that:
(A) Expressly or by inference determines the paternity of a
child, or that imposes a child support obligation based on the
paternity of a child; and
(B) Resulted from a proceeding in which blood tests were not
performed and the issue of paternity was not challenged.
(c) 'Petition' means a petition or motion filed under this
section.
(d) 'Petitioner' means the person filing a petition or motion
under this section.
(2)(a) The following may file in circuit court a petition to
vacate or set aside the paternity determination of a paternity
judgment, including any child support obligations established in
the paternity judgment, and for a judgment of nonpaternity:
(A) A party to the paternity judgment.
(B) The Department of Human Services if the child is in the
care and custody of the Department of Human Services under ORS
chapter 419B.
(C) The Division of Child Support of the Department of Justice
if the child support rights of the child or of one of the parties
to the paternity judgment have been assigned to the state.
(b) The petitioner may file the petition in the circuit court
proceeding in which the paternity judgment was entered, in a
related proceeding or in a separate action. The petitioner shall
attach a copy of the paternity judgment to the petition.
(c) If the ground for the petition is that the paternity
determination was obtained by or was the result of mistake,
inadvertence, surprise or excusable neglect, the petitioner may
not file the petition more than one year after entry of the
paternity judgment.
(d) If the ground for the petition is that the paternity
determination was obtained by or was the result of fraud,
misrepresentation or other misconduct of an adverse party, the
petitioner may not file the petition more than one year after the
petitioner discovers the fraud, misrepresentation or other
misconduct.
(3) In the petition, the petitioner shall:
(a) Designate as parties:
(A) All persons who were parties to the paternity judgment;
(B) The child if the child is a child attending school, as
defined in ORS 107.108;
(C) The Department of Human Services if the child is in the
care and custody of the Department of Human Services under ORS
chapter 419B; and
(D) The Administrator of the Division of Child Support of the
Department of Justice if the child support rights of the child or
of one of the parties to the paternity judgment have been
assigned to the state.
(b) Provide the full name and date of birth of the child whose
paternity was determined by the paternity judgment.
(c) Allege the facts and circumstances that resulted in the
entry of the paternity judgment and explain why the issue of
paternity was not contested.
(4) After filing a petition under this section, the petitioner
shall serve a summons and a true copy of the petition on all
parties as provided in ORCP 7.
(5) The court, on its own motion or on the motion of a party,
may appoint counsel for the child. However, if requested to do so
by the child, the court shall appoint counsel for the child. A
reasonable fee for an attorney so appointed may be charged
against one or more of the parties or as a cost in the
proceeding, but may not be charged against funds appropriated for
public defense services.
(6) The court may order the mother, the child and the man whose
paternity of the child was determined by the paternity judgment
to submit to blood tests. In deciding whether to order blood
tests, the court shall consider the interests of the parties and
the child and, if it is just and equitable to do so, may deny a
request for blood tests. If the court orders blood tests under
this subsection, the court shall order the petitioner to pay the
costs of the blood tests.
(7) Unless the court finds, giving consideration to the
interests of the parties and the child, that to do so would be
substantially inequitable, the court shall vacate or set aside
the paternity determination of the paternity judgment, including
provisions imposing child support obligations, and enter a
judgment of nonpaternity if the court finds by a preponderance of
the evidence that:
(a) The paternity determination was obtained by or was the
result of:
(A) Mistake, inadvertence, surprise or excusable neglect; or
(B) Fraud, misrepresentation or other misconduct of an adverse
party;
(b) The mistake, inadvertence, surprise, excusable neglect,
fraud, misrepresentation or other misconduct was discovered by
the petitioner after the entry of the paternity judgment; and
(c) Blood tests establish that the man is not the biological
father of the child.
(8) If the court finds that the paternity determination of a
paternity judgment was obtained by or was the result of fraud,
the court may vacate or set aside the paternity determination
regardless of whether the fraud was intrinsic or extrinsic.
(9) If the court finds, based on blood test evidence, that the
man may be the biological father of the child and that the
cumulative paternity index based on the blood test evidence is 99
or greater, the court shall deny the petition.
(10) The court may grant the relief authorized by this section
upon a party's default, or by consent or stipulation of the
parties, without blood test evidence.
(11) A judgment entered under this section vacating or setting
aside the paternity determination of a paternity judgment and
determining nonpaternity:
(a) Shall contain the full name and date of birth of the child
whose paternity was established or declared by the paternity
judgment.
(b) Shall vacate and terminate any ongoing and future child
support obligations arising from or based on the paternity
judgment.
(c) May vacate or deem as satisfied, in whole or in part,
unpaid child support obligations arising from or based on the
paternity judgment.
(d) May not order restitution from the state for any sums paid
to or collected by the state for the benefit of the child.
(12) If the court vacates or sets aside the paternity
determination of a paternity judgment under this section and
enters a judgment of nonpaternity, the petitioner shall send a
court-certified true copy of the judgment entered under this
section to the State Registrar of the Center for Health
Statistics and to the Department of Justice as the state
disbursement unit. Upon receipt of the court-certified true copy
of the judgment entered under this section, the state registrar
shall correct any records maintained by the state registrar that
indicate that the male party to the paternity judgment is the
father of the child.
(13) The court may award to the prevailing party a judgment for
reasonable attorney fees and costs, including the cost of any
blood tests ordered by the court and paid by the prevailing
party.
(14) A judgment entered under this section vacating or setting
aside the paternity determination of a paternity judgment and
determining nonpaternity is not a bar to further proceedings to
determine paternity, as otherwise allowed by law.
(15) If a man whose paternity of a child has been determined by
a paternity judgment has died, an action under this section may
not be initiated by or on behalf of the estate of the man.
(16) This section does not limit the authority of the court to
vacate or set aside a judgment under ORCP 71, to modify a
judgment within a reasonable period, to entertain an independent
action to relieve a party from a judgment, to vacate or set aside
a judgment for fraud upon the court or to render a declaratory
judgment under ORS chapter 28.
(17) This section shall be liberally construed to the end of
achieving substantial justice. + }
SECTION 10. { + Section 9 of this 2007 Act applies to all
paternity judgments, as defined in section 9 of this 2007 Act,
entered before, on or after the effective date of this 2007
Act. + }
SECTION 11. ORS 419B.875 is amended to read:
419B.875. (1)(a) Parties to proceedings in the juvenile court
under ORS 419B.100 and 419B.500 are:
(A) The child or ward;
(B) The parents or guardian of the child or ward;
(C) A putative father 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:
(i) Residing with the child or ward;
(ii) Contributing to the financial support of the child or
ward; or
(iii) 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;
and
(H) The tribe in cases subject to the Indian Child Welfare Act
if the tribe has intervened pursuant to the Indian Child Welfare
Act.
(b) An intervenor who is granted intervention under ORS
419B.116 is a party to a proceeding under ORS 419B.100. An
intervenor under this paragraph is not a party to a proceeding
under ORS 419B.500.
(2) 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)(b) 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.
(3) A putative father who satisfies the criteria set out in
subsection (1)(a)(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 { + or biological + } father of the
child or ward.
(4) 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 { + or biological + } father
or who has filed a petition for filiation that was dismissed is
not a party under subsection (1) of this section.
(5)(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.
(6) 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.
(7) When a legal grandparent of a child or ward requests in
writing and provides a mailing address, the 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.
(8) 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 12. ORS 107.425 is amended to read:
107.425. (1) In suits or proceedings described in subsection
(4) of this section in which there are minor children involved,
the court may cause an investigation to be made as to the
character, family relations, past conduct, earning ability and
financial worth of the parties for the purpose of protecting the
children's future interest. The court may defer the entry of a
general judgment until the court is satisfied that its judgment
in such suit or proceeding will properly protect the welfare of
such children. The investigative findings shall be offered as and
subject to all rules of evidence. Costs of the investigation may
be charged against one or more of the parties or as a cost in the
proceedings but shall not be charged against funds appropriated
for public defense services.
(2) The court, on its own motion or on the motion of a party,
may order an independent physical, psychological, psychiatric or
mental health examination of a party or the children and may
require any party and the children to be interviewed, evaluated
and tested by an expert or panel of experts. The court may also
authorize the expert or panel of experts to interview other
persons and to request other persons to make available to the
expert or panel of experts records deemed by the court or the
expert or panel of experts to be relevant to the evaluation. The
court may order the parties to authorize the disclosure of such
records. In the event the parties are unable to stipulate to the
selection of an expert or panel of experts to conduct the
examination or evaluation, the court shall appoint a qualified
expert or panel of experts. The court shall direct one or more of
the parties to pay for the examination or evaluation in the
absence of an agreement between the parties as to the
responsibility for payment but shall not direct that the expenses
be charged against funds appropriated for public defense
services. If more than one party is directed to pay, the court
may determine the amount that each party will pay based on
financial ability.
(3)(a) In addition to an investigation, examination or
evaluation under subsections (1) and (2) of this section, the
court 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. The services
provided to the court and to parents under this section may
include:
(A) Gathering information;
(B) Monitoring compliance with court orders;
(C) Providing the parents, their attorneys, if any, and the
court with recommendations for new or modified parenting time
provisions; and
(D) Providing parents with problem solving, conflict management
and parenting time coordination services or other services
approved by the court.
(b) Services provided under this section may require the
provider to possess and utilize mediation skills, but the
services are not comprised exclusively of mediation services
under ORS 107.755 to 107.795. If only mediation services are
provided, the provisions of ORS 107.755 to 107.795 apply.
(c) The court may order one or more of the parties to pay for
services provided under this subsection, if the parties are
unable to agree on their respective responsibilities for payment.
The court may not order that expenses be charged against funds
appropriated for public defense services.
(d) The presiding judge of each judicial district shall
establish qualifications for the appointment and training of
individuals and panels and the designation of programs under this
section. In establishing qualifications, a presiding judge shall
take into consideration any guidelines recommended by the
statewide family law advisory committee.
(4) The provisions of this section apply when:
(a) A person files a domestic relations suit, as defined in ORS
107.510;
(b) A motion to modify an existing judgment in a domestic
relations suit is before the court;
(c) A parent of a child born { - out of wedlock - } { + to
an unmarried woman + } initiates a civil proceeding to determine
custody or support under ORS 109.103;
(d) A person petitions or files a motion for intervention under
ORS 109.119;
(e) A person or the administrator files a petition under ORS
109.125 to establish paternity and paternity is established; or
(f) A habeas corpus proceeding is before the court.
(5) Application of the provisions of subsection (1), (2) or (3)
of this section to the proceedings under subsection (4) of this
section does not prevent initiation, entry or enforcement of an
order of support.
(6) The court, on its own motion or on the motion of a party,
may appoint counsel for the children. However, if requested to do
so by one or more of the children, the court shall appoint
counsel for the child or children. A reasonable fee for an
attorney so appointed may be charged against one or more of the
parties or as a cost in the proceedings but shall not be charged
against funds appropriated for public defense services.
(7) Prior to the entry of an order, the court on its own motion
or on the motion of a party may take testimony from or confer
with the child or children of the marriage and may exclude from
the conference the parents and other persons if the court finds
that such action would be likely to be in the best interests of
the child or children. However, the court shall permit an
attorney for each party to attend the conference and question the
child, and the conference shall be reported.
SECTION 13. 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)(a)(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 { + or biological + } 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:
(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.
(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.
(8) If a guardian ad litem has been appointed for a parent
under ORS 419B.231, a copy of the summons served on the parent
under this section must be provided to the guardian ad litem.
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