69th OREGON LEGISLATIVE ASSEMBLY--1997 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 2483

                         Senate Bill 839

Sponsored by Senator SHANNON; Representative MILNE (at the
  request of Steve Young)


                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Provides that any party may request jury trial on issue of
child custody in any judicial proceeding involving child custody.

                        A BILL FOR AN ACT
Relating to child custody; creating new provisions; and amending
  ORS 109.135, 109.155, 109.175 and 416.430.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + In any judicial proceeding in which the custody
of a child is at issue, any party to the proceeding may request a
jury trial on the issue of child custody. In determining custody
of a child, the jury shall consider the same factors a court is
required to consider and shall apply the same standards as a
court. + }
  SECTION 2. ORS 109.135 is amended to read:
  109.135. (1) All filiation proceedings shall be commenced in
the circuit court and shall for all purposes be deemed suits in
equity, but either party shall have the right to trial by jury on
the   { - issue - }  { +  issues + } of paternity { +  and
custody + }. Unless otherwise specifically provided by statute,
the proceedings shall be conducted pursuant to the Oregon Rules
of Civil Procedure.
  (2) All filiation proceedings shall be commenced and tried in
the county where either the initiating party or the child
resides.
  SECTION 3. ORS 109.155 is amended to read:
  109.155. (1) The court or the jury, in a private hearing, shall
first determine the issue of paternity. If the respondent admits
the paternity, such 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 or jury 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.  { + However, if either party requests, a
jury shall determine the issue of custody. + } The court may
approve any settlement agreement reached between the parties and
incorporate the same into any decree rendered, and it may order

such investigation or the production of such evidence as it 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 order either parent to
pay such sum as it deems appropriate for the past and future
support and maintenance of the child during its minority and
while the child is attending school 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.
  SECTION 4. ORS 109.175 is amended to read:
  109.175. 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 joint declaration of paternity as provided by ORS
109.070 (5), 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
joint declaration of paternity, has sole legal custody until a
court  { + or jury + } specifically orders otherwise. The first
time the court  { + or jury + } determines who should have legal
custody, neither parent shall have the burden of proving a change
of circumstances.  The court  { + or jury + } 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.
  SECTION 5. ORS 416.430 is amended to read:
  416.430. (1) The administrator may establish paternity of a
child in the course of a support proceeding under ORS 416.400 to
416.470 when both parents sign statements that paternity has not
been legally established and that the male parent is the father
of the child. The administrator may enter an order which
establishes paternity.
  (2) If the parent fails to file a response denying paternity
and requesting a hearing within the time period allowed in ORS
416.415 (2), then the administrator, without further notice to
the parent, may enter an order, in accordance with ORS 416.415
(7), which declares and establishes the parent as the legal
father of the child.
  (3) Any order entered pursuant to subsection (1) or (2) of this
section establishes legal paternity for all purposes. The Vital
Statistics Unit of the Health Division of the Department of Human
Resources shall prepare a new birth certificate in the new name,
if any, of the child. The original birth certificate shall be
sealed and filed and may be opened only upon order of a court of
competent jurisdiction.
  (4)(a) If paternity is alleged under ORS 416.415 (3) and a
written response denying paternity and requesting a hearing is
received within the time period allowed in ORS 416.415 (2), or if
the administrator determines that there is a valid issue with
respect to paternity of the child, the administrator, subject to
the provisions of subsections (5) and (6) of this section, shall
certify the matter to the circuit court for a determination based
upon the contents of the file and any evidence which may be
produced at trial. The proceedings in court shall for all
purposes be deemed suits in equity, but either party shall have
the right to trial by jury on the   { - issue - }  { +
issues + } of paternity { +  and custody + }.  The provisions of
ORS 109.145 to 109.230 apply to proceedings certified to court by
the administrator pursuant to this section.


  (b) Any response denying paternity and requesting a hearing
shall be sent by the enforcement office to the obligee by regular
mail.
  (5) An action to establish paternity initiated under ORS
416.400 to 416.470 shall not be certified to court for trial
unless all of the following have occurred:
  (a) Blood tests have been conducted;
  (b) The results of the blood tests have been served upon the
parties and notice has been given that an order establishing
paternity will be entered unless a written objection is received
within 30 days; and
  (c) A written objection to the entry of an order has been
timely received from a party.
  (6) Notwithstanding the provisions of subsection (5) of this
section, the administrator:
  (a) Shall certify the matter to court:
  (A) Within 30 days of receipt by the administrator of a timely
written objection to the entry of an order by a party under
subsection (5)(c) of this section;
  (B) When a party requests certification in writing after the
administrator has received a party's written denial of paternity
if at least 120 days have elapsed from receipt of the denial; or
  (C) Upon receipt of blood test results with a cumulative
paternity index of less than 99; and
  (b) May certify the matter to court at any time under any other
circumstances.
  (7) Notwithstanding ORS 109.258, if the blood tests conducted
under ORS 109.250 to 109.262 result in a cumulative paternity
index of 99 or greater, evidence of the tests, together with the
testimony of the parent, shall be a sufficient basis upon which
to establish paternity and the administrator may enter an order
declaring the alleged father as the legal father of the child
unless a party objects in writing to the entry of the order. The
testimony of the parent may be presented by affidavit.
  (8) Prior to certification to court, the administrator may
attempt to resolve the issue of paternity by discovery conducted
under the Oregon Rules of Civil Procedure. Unless otherwise
specifically provided by statute, the proceedings shall be
conducted under the Oregon Rules of Civil Procedure.
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