Chapter 109 — Parent
and Child Rights and Relationships
2011 EDITION
PARENT AND CHILD RIGHTS AND
RELATIONSHIPS
DOMESTIC RELATIONS
PARENT AND CHILD RELATIONSHIP
109.001 Breast-feeding
in public place
109.003 Attorney
fees; intervenor
109.010 Duty
of support
109.012 Liability
of parents for expenses and education of children
109.015 Proceedings
for child support if child receives public assistance
109.020 When
child’s maintenance and education may be defrayed out of income of own property
109.030 Equality
in rights and responsibilities of parents
109.035 Security
required before foreign travel with child
109.041 Relationship
between adopted child and natural and adoptive parents
109.050 Relation
of adopted child to adoptive parents
109.056 Delegation
of certain powers by parent or guardian; delegation during period of military
service
109.060 Legal
status and legal relationships when parents not married
109.070 Establishing
paternity
109.072 Petition
to vacate or set aside paternity determination
109.073 Social
Security number of parent in paternity order
109.090 Interpretation
of ORS 109.060 to 109.090
109.092 Establishing
paternity by acknowledgment; mother surrendering child for adoption
109.094 Rights
of father when paternity established; procedure when paternity established
109.096 Notice
to putative father when paternity not established
109.098 Objection
of putative father in proceeding referred to in ORS 109.096; effect of failure
to appear and object
109.100 Petition
for support; effect of judgment; parties
109.103 Proceeding
to determine custody or support of child
109.112 Mother,
father or putative father deemed to have attained majority
109.116 Validity
of putative father’s authorization, release or waiver
109.118 Validity
of decrees or orders entered prior to July 3, 1975, concerning custody,
adoption or permanent commitment of child
109.119 Rights
of person who establishes emotional ties creating child-parent relationship or
ongoing personal relationship; presumption regarding legal parent; motion for
intervention
FILIATION PROCEEDINGS
109.124 Definitions
for ORS 109.124 to 109.230
109.125 Who
may initiate proceedings; petition; parties
109.135 Circuit
court jurisdiction; equity suit; place of commencement
109.145 Court
may proceed despite failure to appear; evidence required
109.155 Hearing;
order for payment for support of child and other costs; policy regarding
settlement; enforcement of settlement terms; remedies
109.165 Vacation
or modification of judgment; policy regarding settlement; enforcement of
settlement terms; remedies
109.175 Determination
of legal custody after paternity established
109.225 Notice
to Center for Health Statistics after petition filed; filing notice
109.230 Legality
of contract between mother and father of child born out of wedlock
109.231 Records
open to public
109.237 Attorney
fees
ARTIFICIAL INSEMINATION
109.239 Rights
and obligations of children resulting from artificial insemination; rights and
obligations of donor of semen
109.243 Relationship
of child resulting from artificial insemination to mother’s husband
109.247 Application
of law to children resulting from artificial insemination
UNIFORM ACT ON BLOOD TESTS TO DETERMINE
PATERNITY
109.250 Short
title
109.251 “Blood
tests” defined
109.252 Authority
for blood test; effect of refusal to submit to test; payment for test
109.254 Selection
of experts to make tests; admissible evidence
109.256 Compensation
of experts
109.258 Effect
of test results
109.259 Temporary
child support pending determination of paternity
109.260 Applicability
to criminal actions for nonsupport
109.262 Uniformity
of interpretation
109.264 Parties
ADOPTION
109.304 Definitions
for ORS 109.305 to 109.410; information in placement report
109.305 Interpretation
of adoption laws; agreement for continuing contact
109.307 Court
required to act within six months of filing of petition for adoption; duty of
clerk
109.308 Confidentiality
of petitioners
109.309 Petition
for adoption; residency requirement; where filed; venue; notice; placement
report; fee; rules
109.311 Financial
disclosure statement to be filed with petition; placement report required;
exception; prohibited fees; advertising
109.312 Consent
to adoption
109.313 Application
for home study by Oregon resident
109.314 Consent
when custody of child has been awarded in divorce proceedings
109.316 Consent
by Department of Human Services or approved child-caring agency of this state
109.318 Consent
by organization located outside Oregon
109.322 Consent
when parent mentally ill, mentally retarded or imprisoned
109.324 Consent
when parent has deserted or neglected child
109.326 Consent
when husband not father
109.328 Consent
of child 14 years of age or older
109.329 Adoption
of person 18 years of age or older or legally married
109.330 Notice
to nonconsenting parent; notice when child has no parent, guardian or next of
kin
109.332 Grandparent
visitation in stepparent adoption
109.335 Appointment
of guardian pending further adoption proceedings
109.342 Medical
history of child and biological parents required; content; delivery to adoptive
parent and to adoptee on majority
109.346 Adoption-related
counseling for birth parent
109.347 Civil
action for failure to pay for counseling; attorney fees
109.350 Judgment
of adoption
109.353 Notice
of voluntary adoption registry required before judgment entered; waiver
109.360 Change
of adopted child’s name
109.381 Effect
of judgment of adoption
109.385 Certain
adoptions in foreign nations recognized; evidence
109.390 Authority
of Department of Human Services or child-caring agency in adoption proceedings
109.400 Adoption
report form
109.410 Certificate
of adoption; form; fee; persons eligible to receive copy; status
VOLUNTARY ADOPTION REGISTRY
109.425 Definitions
for ORS 109.425 and 109.435 to 109.507
109.430 Policy
and purpose
109.435 Adoption
records to be permanently maintained
109.440 Information
confidential; exceptions
109.445 Information
of registry confidential
109.450 Child
placement agency to maintain registry; Department of Human Services duties
109.455 Persons
eligible to use registry
109.460 Persons
eligible to register
109.465 Content
of affidavit; notice of change in information
109.470 Continuing
registration by birth parent or putative father
109.475 Processing
affidavits
109.480 Counseling
of registrant
109.485 Registry
information to be maintained permanently
109.490 Limits
on releasing information
109.495 Registrant
fee
109.500 Genetic,
social and health history; availability; fee
109.502 Search
for birth parents, putative father or genetic siblings; who may initiate;
information required; fee
109.503 Access
to adoption records for search; duties of searcher
109.504 Effect
on subsequent searches when person sought in initial search refuses contact
109.505 Support
services; adoption and reunion issues
109.506 Rulemaking;
fees
109.507 Access
to Department of Human Services records required; access to private agency
records discretionary
AGE OF MAJORITY
109.510 Age
of majority
109.520 Majority
of married persons
RIGHTS OF MINORS
109.610 Right
to treatment for venereal disease without parental consent
109.640 Right
to medical or dental treatment without parental consent; provision of birth
control information and services to any person
109.650 Disclosure
without minor’s consent and without liability
109.660 Construction
109.670 Right
to donate blood
109.672 Certain
persons immune from liability for providing care to minor
109.675 Right
to diagnosis or treatment for mental or emotional disorder or chemical
dependency without parental consent
109.680 Disclosure
without minor’s consent; civil immunity
109.685 Person
providing treatment or diagnosis not subject to civil liability for providing
treatment or diagnosis without consent of parent or guardian
109.690 Parent
or guardian not liable for payment under ORS 109.675
109.695 Rules
for implementation of ORS 109.675 to 109.695
109.697 Right
to contract for dwelling unit and utilities without parental consent
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT
ACT
(General Provisions)
109.701 Short
title
109.704 Definitions
for ORS 109.701 to 109.834
109.707 Proceedings
governed by other law
109.711 Application
to Indian tribes
109.714 International
application of ORS 109.701 to 109.834
109.717 Effect
of child custody determination
109.721 Priority
109.724 Notice
to persons outside state
109.727 Appearance
and limited immunity
109.731 Communication
between courts
109.734 Taking
testimony in another state
109.737 Cooperation
between courts; preservation of records
(Jurisdiction)
109.741 Initial
child custody jurisdiction
109.744 Exclusive,
continuing jurisdiction
109.747 Jurisdiction
to modify determination
109.751 Temporary
emergency jurisdiction
109.754 Notice;
opportunity to be heard; joinder
109.757 Simultaneous
proceedings
109.761 Inconvenient
forum
109.764 Jurisdiction
declined by reason of conduct
109.767 Information
to be submitted to court
109.771 Appearance
of parties and child
(Enforcement)
109.774 Definitions
for ORS 109.774 to 109.827
109.777 Enforcement
under Hague Convention
109.781 Duty
to enforce
109.784 Temporary
order for parenting time or visitation
109.787 Registration
of child custody determination; notice; fee; hearing
109.791 Enforcement
of registered determination
109.794 Simultaneous
proceedings
109.797 Expedited
enforcement of child custody determination
109.801 Service
of petition and order
109.804 Immediate
physical custody of child allowed; exceptions; spousal privilege not allowed in
certain proceedings
109.807 Warrant
to take physical custody of child
109.811 Costs,
fees and expenses
109.814 Recognition
and enforcement
109.817 Appeals
109.821 Role
of district attorney
109.824 Role
of law enforcement officer
109.827 Costs
and expenses of district attorney and law enforcement officers
(Miscellaneous Provisions)
109.831 Application
and construction
109.834 Severability
clause
PENALTY
109.990 Penalty
Note:
Definitions in 25.010 and 25.011 apply to ORS chapter 109.
PARENT AND CHILD RELATIONSHIP
109.001 Breast-feeding in public place.
A woman may breast-feed her child in a public place. [1999 c.306 §1]
Note:
109.001 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
109.003 Attorney fees; intervenor.
In any proceeding brought under this chapter, an authorization of attorney fees
to a party also authorizes an award of attorney fees to or against any person
who has appeared or intervened in the proceeding. [1997 c.90 §4; 2005 c.22 §84]
109.010 Duty of support.
Parents are bound to maintain their children who are poor and unable to work to
maintain themselves; and children are bound to maintain their parents in like
circumstances.
109.012 Liability of parents for expenses
and education of children. (1)(a) The expenses of a minor
child and the education of the minor child are chargeable upon the property of
either or both parents who have not married each other. The parents may be sued
jointly or separately for the expenses and education of the minor child.
(b)
This subsection applies to a man who is asserted to be a parent of the minor
child only when:
(A)
A voluntary acknowledgment of paternity form has been filed in this or another
state and the period for rescinding or challenging the voluntary acknowledgment
on grounds other than fraud, duress or material mistake of fact has expired; or
(B)
Paternity has been established pursuant to an order or judgment entered under
ORS 109.124 to 109.230 or 416.430.
(c)
As used in this subsection, “expenses of a minor child” includes only expenses
incurred for the benefit of a minor child.
(2)
Notwithstanding subsection (1) of this section, a parent is not responsible for
debts contracted by the other parent after the separation of one parent from
the other parent, except for debts incurred for maintenance, support and
education of the minor child of the parents.
(3)
For the purposes of subsection (2) of this section, parents are considered
separated if they are living in separate residences without intention of
reconciliation at the time the debt is incurred. The court may consider the
following factors in determining whether the parents are separated, in addition
to other relevant factors:
(a)
Whether the parents subsequently reconciled.
(b)
The number of separations and reconciliations of the parents.
(c)
The length of time the parents lived apart.
(d)
Whether the parents intend to reconcile.
(4)
An action under this section must be commenced within the period otherwise
provided by law. [2005 c.732 §2]
109.015 Proceedings for child support if
child receives public assistance. If public
assistance, as defined in ORS 416.400, is provided for any dependent child, the
administrator, as defined in ORS 25.010, may initiate proceedings under ORS
chapter 18, 107, 108, 109, 110 or 125 or ORS 25.010 to 25.243, 25.378, 25.402,
416.400 to 416.465, 419B.400 or 419C.590 to obtain support for the child from
one or both parents or from any other person legally responsible for the
support of the child, including a guardian or conservator. In any proceeding
under any statute cited in this section, the obligee is a party. [1983 c.767 §2;
1985 c.671 §44c; 1991 c.67 §22; 1993 c.33 §371; 1993 c.596 §19; 1993 c.798 §45;
1995 c.608 §36; 1997 c.249 §37; 2003 c.73 §54; 2003 c.572 §14; 2003 c.576 §577b;
2007 c.643 §2]
109.020 When child’s maintenance and
education may be defrayed out of income of own property.
If any minor, whose parent is living, has property the income of which is
sufficient for the maintenance and education of the minor in a manner more
expensive than the parent can reasonably afford, regard being had to the
situation of the parent’s family and to all the circumstances of the case, the
expenses of the maintenance and education of the minor may be wholly or
partially defrayed out of the income of the property of the minor, as is judged
reasonable by the court having probate jurisdiction. The charges therefor may
be allowed accordingly in the settlement of the accounts of the guardian or the
conservator of the minor of the estate of the minor. [Amended by 1973 c.823 §104;
2007 c.22 §6]
109.030 Equality in rights and responsibilities
of parents. The rights and responsibilities of the
parents, in the absence of misconduct, are equal, and the mother is as fully
entitled to the custody and control of the children and their earnings as the father.
In case of the father’s death, the mother shall come into as full and complete
control of the children and their estate as the father does in case of the
mother’s death.
109.035 Security required before foreign
travel with child. (1) As used in this section:
(a)
“Custody order” includes any order or judgment establishing or modifying
custody of, or parenting time or visitation with, a minor child as described in
ORS 107.095, 107.105 (1), 107.135 or 109.103.
(b)
“Foreign country” means any country that:
(A)
Is not a signatory to the Hague Convention on the Civil Aspects of
International Child Abduction;
(B)
Does not provide for the extradition to the United States of a parental
abductor and minor child;
(C)
Has local laws or practices that would restrict the other parent of the minor
child from freely traveling to or exiting from the country because of the race,
religion, sex or sexual orientation of the other parent;
(D)
Has local laws or practices that would restrict the ability of the minor child
from legally leaving the country after the child reaches the age of majority
because of the race, religion, sex or sexual orientation of the child; or
(E)
Poses a significant risk that the physical health or safety of the minor child
would be endangered in the country because of war, human rights violations or
specific circumstances related to the needs of the child.
(2)
A court that finds by clear and convincing evidence a risk of international
abduction of a minor child may issue a court order requiring a parent who is
subject to a custody order and who plans to travel with a minor child to a
foreign country to provide security, bond or other guarantee as described in
subsection (4) of this section.
(3)
In determining whether a risk of international abduction of a minor child
exists, a court shall consider the following factors involving a parent who is
subject to a custody order:
(a)
The parent has taken or retained, attempted to take or retain or threatened to
take or retain a minor child in violation of state law or a valid custody order
and the parent is unable to present clear and convincing evidence that the
parent believed in good faith that the conduct was necessary to avoid imminent
harm to the parent or the child;
(b)
The parent has recently engaged in a pattern of activities that indicates the
parent is planning to abduct the minor child from this country;
(c)
The parent has strong familial, emotional or cultural connections to this
country or another country, regardless of citizenship or residency status; and
(d)
Any other relevant factors.
(4)
A security, bond or other guarantee required by a court under this section may
include, but is not limited to, any of the following:
(a)
A bond or security deposit in an amount that is sufficient to offset the cost
of recovering the minor child if the child is abducted;
(b)
Supervised parenting time; or
(c)
Passport and travel controls, including but not limited to controls that:
(A)
Prohibit the parent from removing the minor child from this state or this
country;
(B)
Require the parent to surrender a passport or an international travel visa that
is issued in the name of the minor child or jointly in the names of the parent
and the child;
(C)
Prohibit the parent from applying for a new or replacement passport or
international travel visa on behalf of the minor child; and
(D)
Require the parent to provide to a relevant embassy or consulate and to the
Office of Children’s Issues in the United States Department of State the
following documents:
(i)
Written notice of passport and travel controls required under this paragraph;
and
(ii)
A certified copy of a court order issued under this section.
(5)
After considering the factors under subsection (3) of this section and
requiring a security, bond or other guarantee under this section, the court
shall issue a written determination supported by findings of fact and
conclusions of law.
(6)
Nothing in this section is intended to limit the inherent power of a court in
matters relating to children. [2003 c.532 §1; 2005 c.22 §85; 2007 c.100 §17]
Note:
109.035 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
109.040
[Repealed by 1953 c.650 §4]
109.041 Relationship between adopted child
and natural and adoptive parents. (1) The
effect of a judgment of adoption heretofore or hereafter granted by a court of
this state shall be that the relationship, rights and obligations between an
adopted person and the descendants of the adopted person and
(a)
The adoptive parents of the adopted person, their descendants and kindred, and
(b)
The natural parents of the adopted person, their descendants and kindred
shall be the same to all legal intents
and purposes after the entry of such judgment as if the adopted person had been
born in lawful wedlock to the adoptive parents and had not been born to the
natural parents.
(2)
When a person has been or shall be adopted in this state by a stepparent, this
section shall leave unchanged the relationship, rights and obligations between
such adopted person and descendants of the adopted person and natural parent of
the adopted person, who is the spouse of the person who adopted the person, and
the descendants and kindred of such natural parent. [1953 c.650 §1; 2003 c.576 §134]
109.050 Relation of adopted child to
adoptive parents. An adopted child bears the same
relation to adoptive parents and their kindred in every respect pertaining to
the relation of parent and child as the adopted child would if the adopted
child were the natural child of such parents.
109.053 [1979
c.266 §1; 1981 c.614 §1; 1997 c.704 §55; 2003 c.576 §135; renumbered 108.045 in
2005]
109.055 [1971
c.703 §1; 1973 c.827 §12e; repealed by 1979 c.266 §3]
109.056 Delegation of certain powers by
parent or guardian; delegation during period of military service.
(1) Except as provided in subsection (2) or (3) of this section, a parent or guardian
of a minor or incapacitated person, by a properly executed power of attorney,
may delegate to another person, for a period not exceeding six months, any of
the powers of the parent or guardian regarding care, custody or property of the
minor child or ward, except the power to consent to marriage or adoption of a
minor ward.
(2)
A parent or guardian of a minor child may delegate the powers designated in
subsection (1) of this section to a school administrator for a period not
exceeding 12 months.
(3)(a)
As used in this subsection, “servicemember-parent” means a parent or guardian:
(A)
Who is a member of the organized militia of this state or a member of the
Reserves of the Army, Navy, Air Force, Marine Corps or Coast Guard of the
United States; and
(B)
Who is required to enter and serve in the active military service of the United
States under a call or order by the President of the United States or to serve
on active state duty as defined in ORS 398.002.
(b)
A servicemember-parent of a minor child may delegate the powers designated in
subsection (1) of this section for a period not exceeding the term of active
duty service plus 30 days.
(c)
Except as provided in paragraph (d) of this subsection, if the minor child is
living with the child’s other parent, a delegation under paragraph (b) of this
subsection must be to the parent with whom the minor child is living unless a
court finds that the delegation would not be in the best interests of the minor
child.
(d)
When the servicemember-parent has joint custody of the minor child with the
child’s other parent or another individual, and the servicemember-parent is
married to an individual other than the child’s other parent, the
servicemember-parent may delegate the powers designated in subsection (1) of
this section to the spouse of the servicemember-parent for a period not
exceeding the term of active duty service plus 30 days, unless a court finds
that the delegation would not be in the best interests of the minor child. [Formerly
126.030; 2005 c.79 §4; 2007 c.250 §1]
109.060 Legal status and legal
relationships when parents not married. The legal
status and legal relationships and the rights and obligations between a person
and the descendants of the person, and between a person and parents of the person,
their descendants and kindred, are the same for all persons, whether or not the
parents have been married. [1957 c.411 §1]
109.070 Establishing paternity.
(1) The paternity of a person may be established as follows:
(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 (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.
(4)(a)
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 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.
(5)(a)
A signed voluntary acknowledgment of paternity filed in this state may be
challenged and set aside in circuit court 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.
(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.
(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. [1957 c.411 §2; 1969 c.619
§11; 1971 c.127 §2; 1975 c.640 §3; 1983 c.709 §37; 1995 c.79 §37; 1995 c.514 §7;
1999 c.80 §20; 2001 c.455 §17; 2003 c.576 §136; 2005 c.160 §§11,17; 2007 c.454 §1]
109.072 Petition to vacate or set aside
paternity determination. (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. [2007 c.454 §9]
Note:
109.072 was added to and made a part of ORS chapter 109 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
109.073 Social Security number of parent
in paternity order. Except as otherwise provided in
ORS 25.020, the Social Security number of a parent who is subject to a paternity
determination pursuant to ORS 109.070 (1)(d), (e), (f) or (g) or 416.400 to
416.465 shall be included in the order, judgment or other declaration
establishing paternity. [1997 c.746 §123; 1999 c.80 §94; 2005 c.160 §§12,18]
Note:
109.073 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
109.080 [1957
c.411 §4; 1959 c.432 §64; repealed by 1975 c.640 §18]
109.090 Interpretation of ORS 109.060 to 109.090.
(1) The provisions of ORS 109.060 to 109.090 shall apply to all persons,
irrespective of whether they are born before or after August 20, 1957. ORS
109.060 to 109.090 shall not be construed to affect a decree of distribution
entered, or any probate proceeding closed, prior to August 20, 1957.
(2)
ORS 109.060 to 109.090 shall be liberally construed, with the view of
effectuating their objects, notwithstanding the rule of common law that statutes
in derogation thereof are to be strictly construed. [1957 c.411 §§5,6; 1983
c.740 §11]
109.092 Establishing paternity by
acknowledgment; mother surrendering child for adoption.
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) 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. [1975 c.640 §2; 1995 c.514 §17; 2005 c.160 §§13,19]
109.094 Rights of father when paternity
established; procedure when paternity established.
Upon the paternity of a child being established in the proceedings, the father
shall have the same rights as a father who is or was married to the mother of
the child. The clerk of the court shall certify the fact of paternity to the
Center for Health Statistics of the Oregon Health Authority, and the Center for
Health Statistics shall prepare a new birth certificate for the child. [1975
c.640 §6; 1983 c.709 §38; 2009 c.595 §67]
109.096 Notice to putative father when
paternity not established. (1) When the paternity of a
child has not been established under ORS 109.070, the putative father is
entitled to reasonable notice in adoption 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, is sufficient proof to enable the court to
grant the relief sought without notice to the putative father.
(3)
The putative father 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 Oregon Health Authority 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 is barred from contesting the adoption
proceeding.
(4)
Except as otherwise provided in subsection (3) of this section, the putative
father is entitled to reasonable notice in 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 proceedings.
(5)
Notice under this section is not required to be given to a putative father who
was a party to filiation proceedings under ORS 109.125 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. [1975
c.640 §7; 1979 c.491 §1; 1983 c.709 §39; 1995 c.90 §1; 2003 c.576 §137; 2005
c.160 §5; 2009 c.595 §68]
109.098 Objection of putative father in
proceeding referred to in ORS 109.096; effect of failure to appear and object.
(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 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. [1975 c.640 §8; 1995 c.90 §2;
2005 c.160 §6]
109.100 Petition for support; effect of
judgment; parties. (1) Any minor child or the
administrator may, in accordance with ORCP 27 A, apply to the circuit court in
the county in which the child resides, or in which the natural or adoptive
father or mother of the child may be found, for an order upon the child’s father
or mother, or both, to provide for the child’s support. The child or the
administrator may apply for the order by filing in the county a petition
setting forth the facts and circumstances relied upon for the order. If
satisfied that a just cause exists, the court shall direct that the father or
mother appear at a time set by the court to show cause why an order of support
should not be entered in the matter.
(2)
The petitioner 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 minor child, including a proceeding brought
under ORS 25.287, 107.085, 107.135, 107.431, 108.110, 109.103, 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 minor child.
(3)
The petitioner shall include with the petition a certificate regarding any
pending support proceeding and any existing support order. The petitioner 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)
The judgment of a court under subsection (1) of this section is final as to any
installment or payment of money that has accrued up to the time either party
makes a motion to set aside, alter or modify the judgment, and the court may
not set aside, alter or modify the judgment, or any portion thereof, that
provides for any payment of money that has accrued prior to the filing of the
motion.
(5)
The provisions of ORS 108.120 apply to proceedings under subsection (1) of this
section.
(6)
In any proceeding under this section, both the child’s physical and legal
custodians are parties to the action. [1963 c.497 §2; 1975 c.458 §14; 1979 c.90
§2; 1979 c.284 §100; 1989 c.812 §7; 1993 c.596 §20; 2003 c.73 §55a; 2003 c.116 §8;
2003 c.576 §244; 2011 c.595 §124]
109.103 Proceeding to determine custody or
support of child. (1) If a child is born 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 107.449 that relate to custody, support and parenting time, and
the provisions of ORS 107.755 to 107.795 that relate to mediation procedures,
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. [1975 c.640 §9; 2003 c.116 §9; 2003 c.572 §15; 2007 c.454 §2; 2011
c.114 §4]
109.105 [1969
c.461 §1; renumbered 109.610]
109.110
[Amended by 1961 c.338 §1; 1967 c.534 §14; repealed by 1969 c.619 §15]
109.112 Mother, father or putative father
deemed to have attained majority. The mother,
father or putative father of a child shall be deemed to have attained majority
and, regardless of age, may give authorizations, releases or waivers, or enter
into agreements, in adoption, juvenile court, filiation or other proceedings
concerning the care or custody of the child. [1975 c.640 §10]
109.115 [1969
c.271 §2; renumbered 109.620]
109.116 Validity of putative father’s
authorization, release or waiver. Any
authorization, release or waiver given by the putative father with reference to
the custody or adoption of the child or the termination of parental rights
shall be valid even if given prior to the child’s birth. [1975 c.640 §11]
109.118 Validity of decrees or orders
entered prior to July 3, 1975, concerning custody, adoption or permanent
commitment of child. All decrees or orders heretofore
entered in any court of this state concerning the custody, adoption or
permanent commitment of a child are hereby declared valid upon the expiration
of 30 days after July 3, 1975, notwithstanding that notice was not given to the
putative father of the child. [1975 c.640 §13]
109.119 Rights of person who establishes
emotional ties creating child-parent relationship or ongoing personal
relationship; presumption regarding legal parent; motion for intervention.
(1) Except as otherwise provided in subsection (9) of this section, any person,
including but not limited to a related or nonrelated foster parent, stepparent,
grandparent or relative by blood or marriage, who has established emotional
ties creating a child-parent relationship or an ongoing personal relationship
with a child may petition or file a motion for intervention with the court
having jurisdiction over the custody, placement or guardianship of that child,
or if no such proceedings are pending, may petition the court for the county in
which the child resides, for an order providing for relief under subsection (3)
of this section.
(2)(a)
In any proceeding under this section, there is a presumption that the legal
parent acts in the best interest of the child.
(b)
In an order granting relief under this section, the court shall include
findings of fact supporting the rebuttal of the presumption described in
paragraph (a) of this subsection.
(c)
The presumption described in paragraph (a) of this subsection does not apply in
a proceeding to modify an order granting relief under this section.
(3)(a)
If the court determines that a child-parent relationship exists and if the
court determines that the presumption described in subsection (2)(a) of this
section has been rebutted by a preponderance of the evidence, the court shall
grant custody, guardianship, right of visitation or other right to the person
having the child-parent relationship, if to do so is in the best interest of
the child. The court may determine temporary custody of the child or temporary
visitation rights under this paragraph pending a final order.
(b)
If the court determines that an ongoing personal relationship exists and if the
court determines that the presumption described in subsection (2)(a) of this
section has been rebutted by clear and convincing evidence, the court shall
grant visitation or contact rights to the person having the ongoing personal
relationship, if to do so is in the best interest of the child. The court may
order temporary visitation or contact rights under this paragraph pending a
final order.
(4)(a)
In deciding whether the presumption described in subsection (2)(a) of this
section has been rebutted and whether to award visitation or contact rights
over the objection of the legal parent, the court may consider factors
including, but not limited to, the following, which may be shown by the
evidence:
(A)
The petitioner or intervenor is or recently has been the child’s primary
caretaker;
(B)
Circumstances detrimental to the child exist if relief is denied;
(C)
The legal parent has fostered, encouraged or consented to the relationship
between the child and the petitioner or intervenor;
(D)
Granting relief would not substantially interfere with the custodial
relationship; or
(E)
The legal parent has unreasonably denied or limited contact between the child
and the petitioner or intervenor.
(b)
In deciding whether the presumption described in subsection (2)(a) of this
section has been rebutted and whether to award custody, guardianship or other
rights over the objection of the legal parent, the court may consider factors
including, but not limited to, the following, which may be shown by the
evidence:
(A)
The legal parent is unwilling or unable to care adequately for the child;
(B)
The petitioner or intervenor is or recently has been the child’s primary
caretaker;
(C)
Circumstances detrimental to the child exist if relief is denied;
(D)
The legal parent has fostered, encouraged or consented to the relationship
between the child and the petitioner or intervenor; or
(E)
The legal parent has unreasonably denied or limited contact between the child
and the petitioner or intervenor.
(5)
In addition to the other rights granted under this section, a stepparent with a
child-parent relationship who is a party in a dissolution proceeding may
petition the court having jurisdiction for custody or visitation under this
section or may petition the court for the county in which the child resides for
adoption of the child. The stepparent may also file for post-judgment modification
of a judgment relating to child custody.
(6)(a)
A motion for intervention filed under this section shall comply with ORCP 33
and state the grounds for relief under this section.
(b)
Costs for the representation of an intervenor under this section may not be
charged against funds appropriated for public defense services.
(7)
In a proceeding under this section, the court may:
(a)
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 the parties in creating and implementing parenting plans
under ORS 107.425 (3).
(b)
Assess against a party reasonable attorney fees and costs for the benefit of
another party.
(8)
When a petition or motion to intervene is filed under this section seeking
guardianship or custody of a child who is a foreign national, the petitioner or
intervenor shall serve a copy of the petition or motion on the consulate for
the child’s country.
(9)
This section does not apply to proceedings under ORS chapter 419B.
(10)
As used in this section:
(a)
“Child-parent relationship” means a relationship that exists or did exist, in
whole or in part, within the six months preceding the filing of an action under
this section, and in which relationship a person having physical custody of a
child or residing in the same household as the child supplied, or otherwise
made available to the child, food, clothing, shelter and incidental necessaries
and provided the child with necessary care, education and discipline, and which
relationship continued on a day-to-day basis, through interaction,
companionship, interplay and mutuality, that fulfilled the child’s
psychological needs for a parent as well as the child’s physical needs.
However, a relationship between a child and a person who is the nonrelated
foster parent of the child is not a child-parent relationship under this
section unless the relationship continued over a period exceeding 12 months.
(b)
“Circumstances detrimental to the child” includes but is not limited to
circumstances that may cause psychological, emotional or physical harm to a
child.
(c)
“Grandparent” means the legal parent of the child’s legal parent.
(d)
“Legal parent” means a parent as defined in ORS 419A.004 whose rights have not
been terminated under ORS 419B.500 to 419B.524.
(e)
“Ongoing personal relationship” means a relationship with substantial
continuity for at least one year, through interaction, companionship, interplay
and mutuality. [1985 c.516 §2; 1987 c.810 §1; 1993 c.372 §1; 1997 c.92 §1; 1997
c.479 §1; 1997 c.873 §20; 1999 c.569 §6; 2001 c.873 §§1,1a,1e; 2003 c.143 §§1,2;
2003 c.231 §§4,5; 2003 c.576 §§138,139]
109.120
[Repealed by 1969 c.619 §15]
109.121 [1979
c.776 §2; 1983 c.369 §2; 1987 c.810 §2; 1993 c.33 §291; 1999 c.477 §1; 1999
c.569 §7; repealed by 2001 c.873 §2]
109.123 [1979
c.776 §3; repealed by 2001 c.873 §2]
FILIATION PROCEEDINGS
109.124 Definitions for ORS 109.124 to
109.230. 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.
(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 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. [1979 c.246 §4; 1983 c.762 §1; 1995 c.79 §38; 1995 c.343 §24; 1995
c.514 §18; 1997 c.704 §56; 2005 c.160 §§14,20; 2007 c.454 §3]
109.125 Who may initiate proceedings;
petition; parties. (1) Any of the following may
initiate proceedings under this section:
(a)
A mother of a child born out of wedlock or a 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 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), (b),
(c) or (e) of this section:
(A)
The name of the mother of the child born out of wedlock or the 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;
(C)
Facts showing the petitioner’s status to initiate proceedings;
(D)
A statement that a respondent is the father;
(E)
The probable time or period of time during which conception took place; and
(F)
A statement of the specific relief sought.
(b)
If the initiating party is a man specified in subsection (1)(d) of this
section:
(A)
The name of the mother of the child born out of wedlock or the 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;
(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;
(D)
The probable time or period of time during which conception took place; and
(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. [1969
c.619 §1; 1971 c.191 §1; 1971 c.401 §3; 1971 c.779 §79; 1973 c.823 §105; 1975
c.458 §15a; 1975 c.640 §4a; 1979 c.90 §3; 1979 c.246 §5; 1983 c.762 §2; 1993
c.596 §21; 2001 c.334 §6; 2003 c.73 §56; 2007 c.454 §4]
109.130
[Amended by 1967 c.534 §15; repealed by 1969 c.619 §15]
109.133 [1989
c.479 §2; renumbered 109.672 in 1991]
109.135 Circuit court jurisdiction; equity
suit; place of commencement. (1) All
filiation proceedings shall be commenced in the circuit court and shall for all
purposes be deemed suits in equity. 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. [1969 c.619 §§2,3,7; 1971
c.191 §2; 1979 c.246 §6; 1981 s.s. c.3 §104; 1983 c.762 §3; 1999 c.80 §22]
109.140
[Amended by 1959 c.638 §10; repealed by 1969 c.619 §15]
109.145 Court may proceed despite failure
to appear; evidence required. If a
respondent fails to answer or fails to appear at trial, the court shall have
the power to proceed accordingly. In such case, the court may make a
determination of paternity and may impose such obligations on the respondent as
it deems reasonable. In all such cases corroborating evidence in addition to
the testimony of the parent or expectant parent shall be required to establish
paternity and the court may, in its discretion, order such investigation or the
production of such evidence as it deems appropriate to establish a proper basis
for relief. The testimony of the parent or expectant parent and the
corroborating evidence may be presented by affidavit. [1969 c.619 §4; 1975
c.640 §14; 1983 c.762 §4]
109.150
[Amended by 1961 c.338 §2; 1967 c.534 §16; repealed by 1969 c.619 §15]
109.153 [1973
c.827 §12g; 1981 c.669 §3; repealed by 1983 c.762 §10]
109.155 Hearing; order for payment for
support of child and other costs; policy regarding settlement; enforcement of settlement
terms; remedies. (1) The court, in a private hearing,
shall first determine the issue of paternity. If the respondent admits the
paternity, 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 agreement into any
judgment rendered, and the court may order such investigation or the production
of such evidence as 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 may order either parent to pay such sum as the court deems
appropriate for the past and future support and maintenance of the child during
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 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. [1969 c.619 §5;
1971 c.137 §1; 1971 c.191 §3; 1973 c.827 §12h; 1975 c.640 §15; 1981 c.897 §33;
1983 c.762 §5; 1989 c.417 §2; 1997 c.704 §57; 1999 c.80 §23; 2001 c.203 §6;
2003 c.576 §140; 2007 c.454 §5]
109.160
[Repealed by 1969 c.619 §15]
109.165 Vacation or modification of
judgment; policy regarding settlement; enforcement of settlement terms;
remedies. (1) Upon motion of either party, the
court may set aside, alter or modify any portion of the judgment that provides
for the support of the minor child or child attending school, as defined in ORS
107.108. As to any installment or payment of money that has accrued up to the
time the nonmoving party, other than the state, is served with a motion to set
aside, alter or modify the judgment, the judgment is final and the court may
not change it. However, the court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting time unless
otherwise provided by order or judgment, during which the obligor, with the
knowledge and consent of the obligee or pursuant to court order, has physical
custody of the child. A child attending school is a party for purposes of this
section.
(2)
The moving party shall state in the motion, 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 a proceeding brought under
ORS 25.287, 109.100, 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, other than the judgment the
party is moving to set aside, alter or modify.
(3)
The moving party shall include with the motion a certificate regarding any
pending support proceeding and any existing support order other than the
judgment the party is moving to set aside, alter or modify. The party 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)(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 subsection (1) of this section, the court may enforce the
terms set forth in a stipulated order or judgment signed by the parties, an order
or judgment resulting from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A)
As contract terms using contract remedies;
(B)
By imposing any remedy available to enforce an order or 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 modify an order or judgment under
subsection (1) of this section or to seek enforcement of an ancillary agreement
to the order or judgment. [1969 c.619 §6; 1973 c.827 §12i; 1989 c.812 §8; 1997
c.704 §58; 1997 c.707 §22; 2001 c.203 §8; 2003 c.116 §10; 2003 c.419 §3; 2003
c.576 §141]
109.170
[Repealed by 1969 c.619 §15]
109.175 Determination of legal custody after
paternity established. (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 416.465, or if paternity is established by the filing of a voluntary
acknowledgment of paternity as provided by ORS 109.070 (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). [1983 c.761 §11;
1985 c.671 §42; 1995 c.608 §4; 1999 c.59 §25; 1999 c.569 §8; 2001 c.833 §3;
2005 c.160 §§15,21]
109.180
[Repealed by 1969 c.619 §15]
109.190
[Amended by 1961 c.338 §3; repealed by 1969 c.619 §15]
109.200
[Amended by 1961 c.338 §4; repealed by 1969 c.619 §15]
109.210
[Repealed by 1969 c.619 §15]
109.220
[Amended by 1961 c.338 §5; 1969 c.619 §12; repealed by 1979 c.87 §1]
109.225 Notice to Center for Health
Statistics after petition filed; filing notice.
(1) After filing the petition, the petitioner shall cause the Center for Health
Statistics of the Oregon Health Authority to be served by mail with a notice
setting forth the court in which the petition was filed, the date of the filing
therein, the case number, the full name and address of the child, the date and
place of the child’s birth, or if the child is not yet born, the date and place
of the child’s conception and the probable date of the child’s birth, the full
names and addresses of the child’s alleged parents, and the names and addresses
of the petitioner and of the respondents in the proceedings.
(2)
The Center for Health Statistics shall file immediately the notice, or a copy
thereof, with the record of the birth of the child or in the same manner as its
filing of records of birth if the center does not have a record of the birth.
The center shall only provide the information contained in the notice to
persons whose names appear in the notice or to persons or agencies showing a
legitimate interest in the parent-child relationship including, but not limited
to, parties to adoption, juvenile court or heirship proceedings. [1975 c.640 §5;
1983 c.709 §40; 1983 c.762 §6; 1991 c.484 §1; 2009 c.595 §69]
109.230 Legality of contract between
mother and father of child born out of wedlock.
Any contract between the mother and father of a child born out of wedlock is a
legal contract, and the admission by the father of his fatherhood of the child
is sufficient consideration to support the contract. [Amended by 1961 c.338 §6]
109.231 Records open to public.
Records of filiation proceedings filed in circuit court shall be open for
inspection by any person without order of the court. [1993 c.138 §2]
Note:
109.231 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
109.235 [1975
c.640 §12; renumbered 109.308 in 2001]
109.237 Attorney fees.
In any proceeding brought to modify or compel compliance with an order of the
court issued under ORS 109.124 to 109.230, the court may render judgment
awarding to a party, or directly to the party’s attorney, a sum of money
determined to be reasonable as an attorney fee and costs and expenses of suit,
which judgment may include expert witness fees, in preparation for and at trial
and on appeal. [1989 c.417 §1]
Note:
109.237 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
ARTIFICIAL INSEMINATION
109.239 Rights and obligations of children
resulting from artificial insemination; rights and obligations of donor of
semen. If the donor of semen used in
artificial insemination is not the mother’s husband:
(1)
Such donor shall have no right, obligation or interest with respect to a child
born as a result of the artificial insemination; and
(2)
A child born as a result of the artificial insemination shall have no right,
obligation or interest with respect to such donor. [1977 c.686 §5]
Note:
109.239 to 109.247 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 109 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
109.243 Relationship of child resulting
from artificial insemination to mother’s husband.
The relationship, rights and obligation between a child born as a result of
artificial insemination and the mother’s husband shall be the same to all legal
intents and purposes as if the child had been naturally and legitimately
conceived by the mother and the mother’s husband if the husband consented to
the performance of artificial insemination. [1977 c.686 §6]
Note: See
note under 109.239.
109.247 Application of law to children
resulting from artificial insemination. Except as may
be otherwise provided by a judicial decree entered in any action filed before
October 4, 1977, the provisions of ORS 109.239 to 109.247, 677.355 to 677.365
and 677.990 (3) apply to all persons conceived as a result of artificial
insemination. [1977 c.686 §7]
Note: See
note under 109.239.
UNIFORM ACT ON BLOOD TESTS TO DETERMINE
PATERNITY
109.250 Short title.
ORS 109.250 to 109.262 may be cited as the Uniform Act on Blood Tests to
Determine Paternity. [1953 c.628 §7]
109.251 “Blood tests” defined.
As used in ORS 109.250 to 109.262, “blood tests” includes any test for genetic
markers to determine paternity of a type generally acknowledged as reliable by
accreditation bodies designated by the Oregon Health Authority in compliance
with the United States Secretary of Health and Human Services, and performed by
a laboratory approved by such accreditation body. “Blood tests” includes but is
not limited to the Human Leucocyte Antigen Test, the deoxyribonucleic acid test
and any test that extracts genetic material from any human tissue. [1981 c.401 §2;
1995 c.608 §5; 1999 c.80 §24; 2009 c.595 §70]
109.252 Authority for blood test; effect
of refusal to submit to test; payment for test.
(1) Unless the court or administrator finds good cause not to proceed in a
proceeding under ORS 109.125 to 109.230 and 416.400 to 416.465, in which
paternity is a relevant fact, the court or administrator, as defined in ORS
25.010, upon the court’s or administrator’s own initiative or upon suggestion
made by or on behalf of any person whose blood is involved may, or upon motion
of any party to the action made at a time so as not to delay the proceedings
unduly shall, order the mother, child, alleged father and any other named
respondent who may be the father to submit to blood tests. If any person
refuses to submit to such tests, the court or administrator may resolve the
question of paternity against such person or enforce the court’s or
administrator’s order if the rights of others and the interests of justice so
require.
(2)
When child support enforcement services are being provided under ORS 25.080,
the Child Support Program shall pay any costs for blood tests subject to
recovery from the party who requested the tests. If the original test result is
contested prior to the entry of an order establishing paternity, the court or
administrator shall order additional testing upon request and advance payment
by the party making the request. [1953 c.628 §1; 1969 c.619 §13; 1983 c.762 §7;
1985 c.671 §43; 1999 c.80 §25; 2001 c.455 §18; 2007 c.71 §28]
109.254 Selection of experts to make tests;
admissible evidence. (1) The tests shall be made by
experts qualified as examiners of genetic markers who shall be appointed by the
court or administrator, as defined in ORS 25.010. Any party or person at whose
suggestion the tests have been ordered may demand that other experts, qualified
as examiners of genetic markers, perform independent tests under order of the
court or administrator, the results of which may be offered in evidence. The
number and qualifications of such experts shall be determined by the court or
administrator.
(2)
The blood test results and the conclusions and explanations of the blood test
experts are admissible as evidence of paternity without the need for foundation
testimony or other proof of authenticity or accuracy, unless a written
challenge to the testing procedure or the results of the blood test has been
filed with the court and delivered to opposing counsel at least 10 days before
any hearing set to determine the issue of paternity. Failure to make such timely
challenge constitutes a waiver of the right to have the experts appear in
person and is not grounds for a continuance of the hearing to determine
paternity. A copy of the results, conclusions and explanations must be
furnished to both parties or their counsel at least 20 days before the date of
the hearing for this subsection to apply. The court for good cause or the
parties may waive the time limits established by this subsection.
(3)
An affidavit documenting the chain of custody of the specimens is prima facie
evidence to establish the chain of custody. [1953 c.628 §2; 1981 c.401 §3; 1985
c.671 §44; 1999 c.80 §26; 2001 c.455 §19]
109.256 Compensation of experts.
(1) The compensation of each expert witness appointed by the court or
administrator shall be fixed at a reasonable amount. It shall be paid as the
court or administrator shall order. The court or administrator may order that
the costs of blood tests be paid by the parties in such proportions and at such
times as it shall prescribe, or that the proportion of any party be paid by the
county in which the proceedings are had, and that, after payment by the parties
or such county or both, all or part or none of it be taxed as costs in the
action.
(2)
The fee of an expert witness called by a party but not appointed by the court
or administrator shall be paid by the party calling the witness but shall not
be taxed as costs in the action. [1953 c.628 §3; 1983 c.762 §8; 1985 c.671 §44a]
109.258 Effect of test results.
A disputable presumption of paternity is created if one or more blood tests
result in a cumulative paternity index of 99 or greater. If the court or
administrator finds that the conclusions of all the experts, as disclosed by
the evidence based upon the tests, are that the alleged father is not the
father of the child, the question of paternity shall be resolved accordingly.
If the experts disagree in their findings or conclusions, the question shall be
submitted upon all the evidence. [1953 c.628 §4; 1985 c.671 §44b; 1999 c.80 §27]
109.259 Temporary child support pending
determination of paternity. Notwithstanding the objections
of a party to an order that seeks to establish paternity, if the blood tests
conducted under ORS 109.250 to 109.262 result in a cumulative paternity index
of 99 or greater, the evidence of the blood tests together with the testimony
of a parent is a sufficient basis upon which to presume paternity for
establishing temporary support. Upon the motion of a party, the court shall
enter a temporary order requiring the alleged father to provide support pending
the determination of parentage by the court. In determining the amount of
support, the court shall use the formula established under ORS 25.275. [1997
c.746 §24b; 1999 c.80 §88]
Note:
109.259 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
109.260 Applicability to criminal actions
for nonsupport. ORS 109.250 to 109.262 apply to
criminal cases for nonsupport under ORS 163.555 subject to the following
limitations and provisions:
(1)
An order for the tests shall be made only upon application of a party or on the
court’s initiative.
(2)
The compensation of the experts shall be paid by the county in which the
proceedings are had under order of court.
(3)
The court may direct a verdict of acquittal upon the conclusions of all the
experts under the provisions of ORS 109.258, otherwise the case shall be submitted
for determination upon all evidence. [1953 c.628 §5; 2011 c.259 §1]
109.262 Uniformity of interpretation.
The Uniform Act on Blood Tests to Determine Paternity shall be so interpreted
and construed as to effectuate its general purpose to make uniform the law of
those states which enact it. [1953 c.628 §6]
109.264 Parties.
In any action under ORS 109.250 to 109.262, the mother, putative father and the
state are parties. [1993 c.596 §23]
ADOPTION
109.304 Definitions for ORS 109.305 to
109.410; information in placement report. As
used in ORS 109.305 to 109.410, unless the context requires otherwise:
(1)
“Home study” means an investigation conducted by the Department of Human
Services or by an Oregon licensed adoption agency that:
(a)
Provides information to a prospective adoptive parent about adoption;
(b)
Includes investigation and study by the department or by an Oregon licensed
adoption agency concerning a prospective parent’s suitability to adopt;
(c)
Includes a written report concerning the prospective parent’s suitability to
adopt; and
(d)
Is completed before the petition for adoption is filed.
(2)
“Placement report” means a written report prepared by the department or by an
Oregon licensed adoption agency after the petition for adoption has been filed
that includes the department’s or the agency’s recommendation to the court
concerning whether the court should grant the petition for adoption based upon
the department’s or the agency’s evaluation of:
(a)
The status and adjustment of the child; and
(b)
The status and adjustment of the child’s prospective adoptive parent.
(3)
Information gathered by the department or by an Oregon licensed adoption agency
during the preparation of the placement report may include information
concerning the child’s social, medical and genetic history and the birth parent’s
history as may be required by ORS 109.312 or 109.342. [1993 c.717 §8]
109.305 Interpretation of adoption laws;
agreement for continuing contact. (1) The rule
that statutes in derogation of common law are to be strictly construed does not
apply to the adoption laws of this state.
(2)
An adoptive parent and a birth parent may enter into a written agreement,
approved by the court, to permit continuing contact between the birth relatives
and the child or adoptive parents.
(3)
If the child is within the jurisdiction of the juvenile court under ORS
419B.100, an adoptive parent and a birth relative may enter into a written
agreement, approved by the court, to permit continuing contact between the
birth relatives and the child or adoptive parents. A birth relative that enters
into an agreement under this subsection must have established emotional ties
creating an ongoing personal relationship, as defined in ORS 109.119, with the
child. If the child is under one year of age, the ongoing personal relationship
between the birth relative and the child must have continued for at least half
of the child’s life.
(4)
If the child is 14 years of age or older, an agreement made under this section
may not be entered into without the consent of the child.
(5)
As used in this section, “birth relative” includes a birth parent, grandparent,
sibling and other member of the child’s birth family.
(6)
The court may show approval of an agreement made under this section by
incorporating the agreement by reference and indicating the court’s approval of
the agreement in the adoption judgment.
(7)
Failure to comply with the terms of an agreement made under this section is not
grounds for setting aside an adoption judgment or revocation of a written
consent to an adoption.
(8)(a)
An agreement made under this section may be enforced by a civil action.
However, before a court may enter an order requiring compliance with the
agreement, the court must find that the party seeking enforcement participated,
or attempted to participate, in good faith in mediating the dispute giving rise
to the action prior to filing the civil action.
(b)
The court may modify an agreement made under this section if the court finds
that the modification is necessary to serve the best interests of the adopted
child, that the party seeking modification participated, or attempted to
participate, in good faith in mediation prior to seeking modification of the
agreement and that:
(A)
The modification is agreed to by all parties to the original agreement; or
(B)
Exceptional circumstances have arisen since the parties entered into the
agreement that justify modification of the agreement.
(9)
The Department of Human Services is not responsible for any costs associated
with an agreement described in subsection (3) of this section. [1957 c.710 §15;
subsections (2), (3) and (4) of 1993 Edition enacted as 1993 c.401 §1; 2003
c.576 §142; 2007 c.720 §1]
Note:
109.305 (7) and (8) were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 109 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
109.307 Court required to act within six
months of filing of petition for adoption; duty of clerk.
(1) Not earlier than provided in ORS 109.309 and not later than six months from
the date on which the petition for leave to adopt another is filed under ORS
109.309, the court before which the petition is pending shall hold a hearing
and shall:
(a)
Enter a judgment under ORS 109.350;
(b)
Continue the guardianship or legal custodial status of the child;
(c)
Waive the child to a court having jurisdiction under ORS 419B.100 or 419C.005;
or
(d)
Take such other action as the court considers necessary.
(2)
The court before which the petition is pending, on its own motion, may take
testimony from or confer with the child to be adopted and may exclude from the
conference the parents or guardians of the child, the proposed adoptive parents
and other persons if the court finds that such action would be likely to be in
the best interests of the child. However, the court shall permit an attorney
for each party to attend the conference, and the conference shall be reported.
(3)
The clerk of the court before which petitions for leave to adopt another are
pending shall periodically notify the court and the Department of Human
Services of all such petitions which have been pending before the court for
more than six months without final disposition pursuant to subsection (1) of
this section.
(4)
The clerk of the court before which a petition is filed for leave to adopt a
minor child shall provide to the Director of Human Services a copy of the court’s
order of disposition of the petition. [1965 c.188 §2; 1983 c.369 §3; 1987 c.814
§2; 1993 c.33 §292; 1993 c.546 §117; 2003 c.576 §143]
109.308 Confidentiality of petitioners.
In an adoption proceeding that is contested or in which a summons is required
to be served, the court may preserve the confidentiality of the names and
addresses of the petitioners for the adoption if the court finds that to do so
is in the best interests of the child. [Formerly 109.235; 2005 c.369 §2]
109.309 Petition for adoption; residency
requirement; where filed; venue; notice; placement report; fee; rules.
(1) Any person may petition the circuit court for leave to adopt another person
and, if desired, for a change of the other person’s name. One petitioner, the
child, one parent or the person, who is not an adoption agency, consenting to
the adoption as required under ORS 109.312 (1) must be a resident of this
state. As used in this subsection, “resident” means a person who has resided in
this state continuously for a period of six months prior to the date of the petition.
(2)
Except as provided in subsection (3) of this section, when the petition is for
the adoption of a minor child, the adoption is governed by the Uniform Child
Custody Jurisdiction and Enforcement Act, ORS 109.701 to 109.834.
(3)(a)
Notwithstanding ORS 109.741 and 109.744, a court of this state has jurisdiction
over the adoption of a minor child if, immediately prior to the filing of a
petition for adoption:
(A)
The minor child resided in this state for at least six consecutive months
including periods of temporary absence;
(B)
One parent or another person, who is not an adoption agency, consenting to the
adoption as required under ORS 109.312 (1) resided in this state for at least
six consecutive months including periods of temporary absence;
(C)
The prospective adoptive parent resided in this state for at least six
consecutive months including periods of temporary absence and substantial
evidence is available in this state concerning the present or future care of
the minor child;
(D)
It appears that no court of another state would have jurisdiction under
circumstances substantially in accordance with subparagraphs (A) to (C) of this
paragraph; or
(E)
A court of another state has declined to exercise jurisdiction on the grounds
that this state is a more appropriate forum to hear a petition for adoption of
the minor child and it is in the best interests of the minor child that a court
of this state assume jurisdiction.
(b)
As used in paragraph (a) of this subsection, “periods of temporary absence”
means periods of absence of not more than a total of 30 days in the prior six
consecutive months.
(4)
The petition to adopt a person 18 years of age or older may be filed in the
county where the petitioner, the person to be adopted or the person who consents
to the adoption resides.
(5)
In a petition to adopt a minor child, venue lies in the Oregon county with
which the child has the most significant connection or in the Oregon county in
which the licensed adoption agency is located.
(6)(a)
When the petition is for the adoption of a minor child, the petitioner shall
also file at the time of filing the petition:
(A)
A written statement containing the full names and permanent addresses of:
(i)
The child;
(ii)
The petitioner;
(iii)
All persons whose consent to the adoption is required under ORS 109.312 when
such names are either known or may be readily ascertained by the petitioner;
(iv)
The persons with whom the child has lived during the last five years and the
places where the child has lived during that period, if the names and addresses
may be readily ascertained by the petitioner;
(v)
If known to the petitioner, any person not a party to the proceeding who has
physical custody of the child or claims rights of legal custody or physical
custody of, or parenting time or visitation with, the child; and
(vi)
The Oregon licensed adoption agency, if any, or the relative or person that
privately placed the child for adoption.
(B)
The documents demonstrating consent under ORS 109.312 to the adoption of the
minor child.
(C)
Written evidence documenting a current home study that has been approved by
either the Department of Human Services or an Oregon licensed adoption agency
submitted for the purpose of demonstrating that the petitioner meets the
minimum standards for adoptive homes as set forth in the department’s
administrative rules.
(b)
A relative who qualifies under the department administrative rules for a waiver
of the department’s home study requirements described in paragraph (a)(C) of
this subsection may file the request for waiver along with the petition for
adoption.
(c)
The department, upon request by the petitioner, may waive the home study
requirements described in paragraph (a)(C) of this subsection in an adoption in
which one of the child’s biological or adoptive parents retains parental
rights. The department shall waive post-placement reports in an adoption in
which one of the child’s biological or adoptive parents retains parental
rights.
(7)(a)
The petitioner shall cause copies of the documents required to be filed with
the court under subsection (6) of this section to be served upon the Director
of Human Services, by either registered or certified mail with return receipt
or personal service, within 30 days after the documents have been filed with
the court.
(b)
In the case of an adoption described in subsection (6)(c) of this section, the
petitioner shall also serve the petition, by either registered or certified
mail with return receipt or personal service:
(A)
On all persons whose consent to the adoption is required under ORS 109.312
unless the person’s written consent is filed with the court; and
(B)
On the parents of the party whose parental rights would be terminated, if the
names and addresses are known or may be readily ascertained by the petitioner.
Service required by this subparagraph may be waived by the court for good
cause.
(c)
When a parent of the child is deceased or incapacitated, the petitioner shall
also serve the petition on the parents of the deceased or incapacitated parent,
if the names and addresses are known or may be readily ascertained by the
petitioner. Service required by this paragraph may be waived by the court for
good cause. As used in this paragraph:
(A)
“Incapacitated” means a condition in which a person’s ability to receive and
evaluate information effectively or to communicate decisions is impaired to
such an extent that the person lacks the capacity to meet the essential
requirements for the person’s physical health or safety.
(B)
“Meet the essential requirements for the person’s physical health or safety”
means those actions necessary to provide the health care, food, shelter,
clothing, personal hygiene and other care without which serious physical injury
or illness is likely to occur.
(d)
The court may not rule upon the petition until at least 90 days after the date
that the documents were served upon the director. However, the department may
waive the 90-day period.
(8)(a)
Within 90 days after the service on the director, the department shall
investigate and file for the consideration of the judge before whom the
petition for adoption is pending a placement report containing information
regarding the status of the child and evidence concerning the suitability of
the proposed adoption. The department may designate an Oregon licensed adoption
agency to investigate and report to the court. If the department designates an
Oregon licensed adoption agency to investigate and report to the court, the
department shall make the designation and provide all necessary information and
materials to the Oregon licensed adoption agency no later than 30 days after
the service on the director. However, the department may waive the placement
report requirement.
(b)
Upon receipt of a written request by the petitioner’s attorney, the department
shall furnish to that attorney copies of any information that the department
has filed with the court.
(c)
The department may charge the petitioner a fee for investigating a proposed
nonagency adoption and preparing the home study report described in subsection
(6)(a)(C) of this section and the placement report described in paragraph (a)
of this subsection. The petitioner shall report the fee amount to the court.
The court granting the adoption shall make a finding as to whether the fee is
necessary and reasonable. Any fee charged may not exceed reasonable costs for
investigation, home study and placement report preparation. The department
shall prescribe by rule the procedure for computing the investigation, home
study and placement report preparation fee. The rules shall provide a waiver of
either part or all of the fee based upon the petitioner’s ability to pay.
(9)
The amounts of any fees collected under subsection (8) of this section are
continuously appropriated to the department for use in preparing the home study
and placement reports required under subsections (6)(a)(C) and (8)(a) of this
section.
(10)(a)
Except as provided in paragraph (b) of this subsection, a court may not grant a
judgment for the adoption of a minor child unless the petitioner has filed with
the court the documents described in subsections (6) and (8)(a) of this
section.
(b)
A person is not required to file a home study or a placement report with the
court when the department has granted the person a waiver under department
rules.
(11)
The adoption shall comply with the Indian Child Welfare Act (25 U.S.C. 1901 et
seq.), if applicable. Every adoption petition involving the Indian Child
Welfare Act shall include the following:
(a)
A statement of the efforts to notify the appropriate Indian tribe or tribes of
the adoption; and
(b)
A statement of the efforts to comply with the placement preferences of the
Indian Child Welfare Act (25 U.S.C. 1901 et seq.) or the placement preferences
of the appropriate Indian tribe. [1993 c.717 §2 (enacted in lieu of 109.310);
1993 c.717 §9; 1995 c.90 §3; 1995 c.730 §2; 1997 c.470 §1; 1999 c.160 §2; 1999
c.649 §52; 2003 c.258 §1; 2003 c.576 §144; 2005 c.475 §1]
109.310
[Amended by 1953 c.368 §2; 1957 c.403 §5; 1959 c.430 §3; 1963 c.188 §1; 1967
c.534 §17; 1969 c.441 §1; 1971 c.401 §4; 1977 c.252 §1; 1983 c.302 §1; 1983
c.396 §1; 1985 c.403 §3; 1991 c.249 §14; repealed by 1993 c.717 §1 (109.309
enacted in lieu of 109.310)]
109.311 Financial disclosure statement to
be filed with petition; placement report required; exception; prohibited fees;
advertising. (1) Each adoption petition filed
pursuant to ORS 109.309 seeking adoption of a minor child shall be accompanied
by a written disclosure statement containing an itemized accounting of all
moneys paid or estimated to be paid by the petitioner for fees, costs and
expenses related to the adoption, including all legal, medical, living and
travel expenses. The form of the disclosure statement shall be prescribed by
the Department of Human Services after consultation with approved Oregon
licensed adoption agencies.
(2)
A court may not grant a judgment for an adoption of a minor child in the
absence of a placement report by the department or an Oregon licensed adoption
agency unless the filing of such report has been waived by the department. A
court may not grant a judgment for an adoption of a minor child in the absence
of a written disclosure statement as described in subsection (1) of this
section or in the absence of a verified statement by the petitioner that, to
the best of the petitioner’s knowledge, no charges, except those reported in
the disclosure statement, have been or will be paid in connection with the
adoption.
(3)
A person may not charge, accept or pay or offer to charge, accept or pay a fee
for locating a minor child for adoption or for locating another person to adopt
a minor child, except that Oregon licensed adoption agencies licensed under ORS
412.001 to 412.161 and 412.991 and ORS chapter 418 may charge reasonable fees
for services provided by them.
(4)(a)
It is unlawful for any person to advertise:
(A)
A child offered or wanted for adoption; or
(B)
That the person is able to place, locate, dispose of or receive a child for
adoption.
(b)
The provisions of paragraph (a) of this subsection do not apply to:
(A)
The department or a licensed Oregon adoption agency or an agent, employee or
person with whom the department or adoption agency has a contract authorizing
such actions; or
(B)
A person who has completed a home study as required by ORS 109.309 (6)(a)(C)
and has received a favorable recommendation regarding the fitness of the person
to be an adoptive parent or the person’s attorney or uncompensated agent. A
written declaration by the person who prepared the home study is sufficient
verification of compliance with this subparagraph. The person’s attorney must
be licensed to practice in Oregon.
(c)
Nothing in this subsection prohibits an attorney licensed to practice in Oregon
from advertising the attorney’s availability to provide services related to the
adoption of children.
(d)
As used in this subsection, unless the context requires otherwise, “advertise”
means to communicate by newspaper, radio, television, handbills, placards or
other print, broadcast or electronic medium that originates within this state. [1985
c.403 §2 (1) to (3); 1987 c.367 §1; 1993 c.717 §4; 1995 c.730 §3; 2003 c.258 §2;
2003 c.576 §145]
109.312 Consent to adoption.
(1) Except as provided in ORS 109.314 to 109.329, consent in writing to the
adoption under ORS 109.309 of a child shall be given by:
(a)
The parents of the child, or the survivor of them.
(b)
The guardian of the child, if the child has no living parent.
(c)
The next of kin in this state, if the child has no living parent and no
guardian.
(d)
Some suitable person appointed by the court to act in the proceeding as next
friend of the child to give or withhold consent, if the child has no living
parent and no guardian or next of kin qualified to consent.
(2)(a)
A person who gives consent to adoption under subsection (1) of this section may
agree concurrently or subsequently to the giving of such consent that the
consent shall be or become irrevocable, and may waive such person’s right to a
personal appearance in court, by a duly signed and attested certificate. The
certificate of irrevocability and waiver shall be in effect when the following
are completed:
(A)
The child is placed for the purpose of adoption in the physical custody of the
person or persons to whom the consent is given;
(B)
The person or persons to whom consent for adoption is given have filed a
petition to adopt the child in a court of competent jurisdiction;
(C)
The court has entered an order appointing the petitioner or some other suitable
person as guardian of the child pursuant to ORS 109.335;
(D)
The Department of Human Services, an Oregon licensed adoption agency or an
attorney who is representing the adoptive parents has filed either a department
or an Oregon licensed adoption agency home study with the court approving the
petitioner or petitioners as potential adoptive parents or the department has
notified the court that the filing of such study has been waived;
(E)
Information about the child’s social, medical and genetic history required in
ORS 109.342 has been provided to an attorney or the department or an Oregon
licensed adoption agency by the person giving consent to the adoption; and
(F)
The person signing the certificate of irrevocability and waiver has been given
an explanation by an attorney who represents the person and who does not also
represent the adoptive family, by the department or by an Oregon licensed
adoption agency of the consequences of signing the certificate.
(b)
Upon the fulfillment of the conditions in paragraph (a) of this subsection, the
consent for adoption may not be revoked unless fraud or duress is proved with
respect to any material fact.
(3)
Consent to the adoption of a child subject to the Indian Child Welfare Act
shall not be valid unless the requirements of the Indian Child Welfare Act (25
U.S.C. 1901 et seq.) are met. In accordance with the Indian Child Welfare Act a
certificate of irrevocability is not valid for a child who is subject to the
Indian Child Welfare Act. [1957 c.710 §2 (109.312 to 109.329 enacted in lieu of
109.320); 1973 c.823 §106; 1983 c.302 §2; 1985 c.565 §10; 1987 c.814 §1; 1991
c.553 §1; 1993 c.717 §6]
109.313 Application for home study by
Oregon resident. (1) The Department of Human
Services shall accept and may approve an application for a home study as
defined in ORS 109.304 that is submitted by an Oregon resident seeking to adopt
a child in the custody of:
(a)
The department;
(b)
A public child welfare agency in another state, following receipt of a request
from the agency in the other state under the Interstate Compact for the
Placement of Children; or
(c)
A public child welfare agency in another country, following receipt of an
appropriate request from the agency in the other country.
(2)
The department shall also accept and may approve an application for a home
study under this section that is submitted by an Oregon resident who is
currently or has previously been under study or consideration by another public
or private agency for placement of a child for adoption.
(3)
An application submitted under this section may be approved if the application
meets the requirements of the department as established by rule. [2011 c.120 §1]
Note:
109.313 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 109 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
109.314 Consent when custody of child has
been awarded in divorce proceedings. (1) If the
legal custody of the child has been awarded in marital dissolution proceedings,
the written consent of the person to whom custody of the child has been awarded
may be held sufficient by the court. However, unless the noncustodial parent
consents to the adoption, the petitioner, in accordance with ORS 109.330, shall
serve on the noncustodial parent a summons and a motion and order to show cause
why the proposed adoption should not be ordered without the noncustodial parent’s
consent, and the objections of the noncustodial parent shall be heard if
appearance is made.
(2)
This section does not apply when consent is given in loco parentis under ORS
109.316 or 109.318. [1957 c.710 §3 (109.312 to 109.329 enacted in lieu of
109.320); 2005 c.369 §4]
109.316 Consent by Department of Human
Services or approved child-caring agency of this state.
(1) The Department of Human Services or an approved child-caring agency of this
state, acting in loco parentis, may consent to the adoption of a child who has
been:
(a)
Surrendered to it for the purpose of adoption under ORS 418.270 if compliance
is had with the provisions of that section;
(b)
Permanently committed to it by order of a court of competent jurisdiction; or
(c)
Surrendered to it for the purpose of adoption under ORS 418.270 by one parent
if compliance is had with the provisions of that section and permanently
committed to it by a court of competent jurisdiction having jurisdiction of the
other parent.
(2)
The department may consent to the adoption of a child over whom the department
has been made guardian under ORS chapter 125.
(3)
When consent is given under this section, no other consent is required.
(4)
When consent is given under this section, there shall be filed in the adoption
proceeding:
(a)
A certified copy of an order of a court of competent jurisdiction formally and
permanently assigning the guardianship of the child to the department or the
child-caring agency, or a copy of the surrender of the child from its parent or
parents or guardian, or both, as the case may be; and
(b)
Written formal consent by the department or the child-caring agency, as the
case may be, to the proposed adoption, showing that sufficient and satisfactory
investigation of the adopting parties has been made and recommending that the
adoption be granted. The consent of the department or the child-caring agency
to the proposed adoption may be given by one of its officers, executives or
employees who has been authorized or designated by it for that purpose. [1957
c.710 §4 (109.312 to 109.329 enacted in lieu of 109.320); 1971 c.401 §5; 1987
c.466 §3; 1995 c.664 §82; 2005 c.22 §86]
109.318 Consent by organization located
outside Oregon. (1) An agency or other
organization, public or private, located entirely outside of this state, or an
authorized officer or executive thereof, acting in loco parentis, may consent
to the adoption of a child under the custody, control or guardianship of such
agency or organization or officer or executive thereof, if such agency or
organization or officer or executive thereof is licensed or otherwise has
authority in the jurisdiction in which such agency or other organization is
located to consent to adoptions in loco parentis. When consent is given under
this section, no other consent is required. The license or other authority to consent
to adoption in loco parentis shall be conclusively presumed upon the filing
with the court of a duly certified statement from an appropriate governmental
agency of such other state that such agency or organization or officer or
executive is licensed or otherwise has authority in such state to consent to
adoptions in loco parentis.
(2)
When consent is given under this section, there shall be filed in the adoption
proceeding:
(a)
A certified copy of the court order, or the written authorization from the
parent, parents or other person, or both a court order and such written
authorization, as the case may be, that enables consent to be given in loco
parentis under the law of such other jurisdiction; and
(b)
Written formal consent by the agency or other organization, or the officer or
executive thereof, to the proposed adoption, showing that sufficient and
satisfactory investigation of the adopting parties has been made and
recommending that the adoption be granted. [1957 c.710 §5 (109.312 to 109.329
enacted in lieu of 109.320); 1973 c.823 §107; 2005 c.22 §87]
109.320
[Repealed by 1957 c.710 §1 (109.312 to 109.329 enacted in lieu of 109.320)]
109.322 Consent when parent mentally ill,
mentally retarded or imprisoned. (1) If a
parent has been adjudged mentally ill or mentally retarded and remains so at
the time of the adoption proceedings, or if a parent is imprisoned in a state
or federal prison under a sentence for a term of not less than three years and
has actually served three years, the petitioner, in accordance with ORS
109.330, shall serve on the parent, if the parent has not consented in writing
to the adoption, a summons and a motion and order to show cause why the
adoption of the child should not be ordered without the parent’s consent.
(2)
In the case of a parent adjudged mentally ill or mentally retarded, the
petitioner shall also serve the summons and the motion and order to show cause
upon the guardian of the parent. If the parent has no guardian, the court shall
appoint a guardian ad litem to appear for the parent in the adoption
proceedings.
(3)
Upon hearing, if the court finds that the adoption is in the best interests of
the child, the consent of the parent who is imprisoned or adjudged mentally ill
or mentally retarded is not required, and the court may proceed regardless of
the objection of the parent.
(4)
This section does not apply when consent is given in loco parentis under ORS
109.316 or 109.318. [1957 c.710 §6 (109.312 to 109.329 enacted in lieu of
109.320); 1975 c.711 §1; 2003 c.576 §146; 2005 c.369 §5; 2007 c.70 §22]
109.324 Consent when parent has deserted
or neglected child. (1) If a parent is believed to
have willfully deserted the child or neglected without just and sufficient
cause to provide proper care and maintenance for the child for one year next
preceding the filing of the petition for adoption, and if the parent does not
consent in writing to the adoption, the petitioner, in accordance with ORS
109.330, shall serve on the parent a summons and a motion and order to show
cause why the adoption of the child should not be ordered without the parent’s
consent.
(2)
Upon hearing or when the parent has failed to file a written answer as required
in ORS 109.330 (3), if the court finds that the parent has willfully deserted the
child or neglected without just and sufficient cause to provide proper care and
maintenance for the child for one year next preceding the filing of the
petition for adoption, the consent of the parent at the discretion of the court
is not required and, if the court determines that the parent’s consent is not
required, the court may proceed regardless of the objection of the parent.
(3)
In determining whether the parent has willfully deserted the child or neglected
without just and sufficient cause to provide proper care and maintenance for
the child, the court may:
(a)
Disregard incidental visitations, communications and contributions; and
(b)
Consider, among other factors the court finds relevant, whether the custodial
parent has attempted, without good cause shown, to prevent or to impede contact
between the child and the parent whose parental rights would be terminated in
an action under this section.
(4)
This section does not apply when consent is given in loco parentis under ORS
109.316 or 109.318. [1957 c.710 §7 (109.312 to 109.329 enacted in lieu of
109.320); 2003 c.576 §147; 2003 c.579 §1; 2005 c.369 §6]
109.326 Consent when husband not father.
(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 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 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 _________
_________, )
Petitioner, ) NO._____
)
) ANSWER
and )
)
_________, )
Respondent. )
□ I consent to the entry of a
judgment of nonpaternity.
□ I do not consent to the 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:
_____________________
______________________________________________________________________________
(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 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 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 ORS 109.070 (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, 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. [1957 c.710 §8 (109.312 to 109.329 enacted in lieu
of 109.320); 1959 c.609 §1; 1967 c.385 §1; 1969 c.591 §287; 1975 c.640 §16;
1989 c.907 §1; 1995 c.514 §19; 2003 c.576 §148; 2005 c.160 §§16,22; 2005 c.369 §7;
2007 c.454 §6]
109.328
Consent of child 14 years of age or older. If the
child is 14 years of age or older, the adoption shall not be made without the
consent of the child. The consent required by this section is in addition to,
and not in lieu of, the consent otherwise required by law. [1957 c.710 §9
(109.312 to 109.329 enacted in lieu of 109.320)]
109.329
Adoption of person 18 years of age or older or legally married.
(1) Subject to subsection (2) of this section, any person may petition the
circuit court for leave to adopt a person who is 18 years of age or older or
who is legally married. The petition shall be accompanied by the written
consent of each petitioner and the written consent of the person to be adopted.
The written consents shall be filed with the petition.
(2) In addition to the written consents
required under subsection (1) of this section, an adoption of a person who is
18 years of age or older or who is legally married is governed by the
following:
(a) One petitioner or the person to be
adopted must have resided in this state continuously for a period of six months
prior to the filing of the petition; and
(b) The petition must be filed in the
county in which one petitioner or the person to be adopted resides.
(3) The court may grant the petition if
the court finds, from the allegations set forth in the petition and an attached
affidavit, that each petitioner:
(a) Understands the significance and
ramifications of the adoption; and
(b) Is not acting under duress, coercion
or undue influence.
(4) In a proceeding under this section,
the court may: