68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1482
House Bill 2309
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Representative Kevin
Mannix)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies conclusive presumption of paternity for child born to
wife cohabiting with husband.
Allows court to deny paternity action initiated by putative
father when court determines that putative father's sexual
conduct that resulted in pregnancy would constitute crime of rape
or incest, unless putative father can establish that
determination of paternity would be in best interests of child.
Prescribes factors for court's consideration.
Changes paternity trial requirement from trial by jury to trial
by court.
A BILL FOR AN ACT
Relating to paternity; creating new provisions; and amending ORS
109.070, 109.092, 109.119, 109.125, 109.135, 109.155, 109.175,
109.326 and 416.430.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 109.070 is amended to read:
109.070. The paternity of a person may be established as
follows:
(1) { + (a) + } { - The child of a wife cohabiting with her
husband who was not impotent or sterile at the time of the
conception of the child, shall be conclusively - } { + A child
born or conceived during a marriage is + } presumed to be the
child of { - her - } { + the mother's + } husband, whether or
not the marriage of the husband and wife may be void { + , if the
husband was not impotent or sterile at the time of conception of
the child and if the husband and mother were cohabiting at the
time of conception or birth + }.
{ + (b) The presumption of paternity in paragraph (a) of this
subsection shall be conclusive as to any child who is over two
years of age at the time of the commencement of any legal
proceeding to establish paternity. In all other cases, the
presumption of paternity shall be rebuttable upon clear and
convincing evidence. + }
{ - (2) A child born in wedlock, there being no decree of
separation from bed or board, shall be presumed to be the child
of the mother's husband, whether or not the marriage of the
husband and wife may be void. This shall be a disputable
presumption. - }
{ - (3) - } { + (2) + } By the marriage of the parents of a
child after birth of the child.
{ - (4) - } { + (3) + } By filiation proceedings.
{ - (5) - } { + (4) + } By joint declaration of paternity
filed with the Vital Statistics Unit of the Health Division of
the Department of Human Resources in the form approved by the
state registrar and with the fee prescribed in ORS 432.146. The
Vital Statistics Unit shall prepare a new birth certificate under
the procedure established by ORS 432.420.
{ - (6) - } { + (5) + } By paternity being established or
declared by other provision of law.
SECTION 2. ORS 109.326 is amended to read:
109.326. (1) If the mother of a child was married at the time
of the conception or birth of the child, and it has been
determined pursuant to ORS 109.070 or judicially determined that
her husband at such time or times was not the father of the
child, the husband's authorization or waiver shall not be
required in adoption, juvenile court or other proceedings
concerning the custody of the child.
(2) If paternity of the child has not been determined, a
determination of nonpaternity may be made by any court having
adoption, divorce or juvenile court jurisdiction. The testimony
or affidavit of the mother or the husband or another person with
knowledge of the facts filed in the proceeding shall constitute
competent evidence before the court making the determination.
(3) Before making the determination of nonpaternity, citation
to show cause why such husband's parental rights should not be
terminated shall be served on him in the manner provided by ORS
109.330 if:
(a) There has been a determination by any court of competent
jurisdiction that the husband is the father of the child;
(b) The child resided with the husband at any time since the
child's birth; or
(c) The husband repeatedly has contributed or tried to
contribute to the support of the child.
(4) There shall be sufficient proof to enable the court to
grant the relief sought without notice to the husband provided
that the affidavit of the mother of the child, of the husband or
of another person with knowledge of the facts filed in the
proceeding states or the court finds from other competent
evidence:
(a) That the mother of the child was not cohabiting with her
husband at the time of conception { + or birth + } of the child
and that the husband is not the father of the child;
(b) That the husband has not been judicially determined to be
the father;
(c) That the child has not resided with the husband; and
(d) That the husband has not contributed or tried to contribute
to the support of the child.
(5) Notwithstanding the provision of ORS 109.070 { - (2) - }
{ + (1) + }, notice to the husband pursuant to ORS 109.330 shall
not be required and the husband's consent, authorization or
waiver shall not be required in adoption proceedings concerning
the child unless the husband has met the requirements for notice
in subsection (3)(a), (b) or (c) of this section.
(6) A husband who was not cohabiting with the mother at the
time of the child's conception { + or birth + } has the primary
responsibility to protect the husband's rights.
(7) Nothing in this section shall be used to set aside an act
of a permanent nature, including but not limited to adoption or
termination of parental rights, unless the father establishes
within one year after the entry of the final decree or order
fraud on the part of the petitioner with respect to the matters
specified in subsection (4)(a), (b), (c) or (d) of this section.
SECTION 3. ORS 109.125 is amended to read:
109.125. (1) Any of the following may initiate proceedings
under this section:
(a) A mother of a child born out of wedlock or a female
pregnant with a child who may be born out of wedlock;
(b) Any state agency, if furnishing support to the mother for
the benefit of the child or if furnishing services or assistance
of any kind because of the birth, or impending birth, of the
child;
(c) 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;
(d) The Support Enforcement Division of the Department of
Justice;
(e) A person claiming to be the father of a child born out of
wedlock or of an unborn child who may be born out of wedlock; or
(f) The minor child by a guardian ad litem.
(2) Proceedings shall be initiated by the filing of a duly
verified petition of the initiating party. The petition shall
contain:
(a) If the initiating party is one of those specified in
subsection (1)(a) to (d) of this section:
(A) The name of the mother of the child born out of wedlock or
the female pregnant with a child who may be born out of wedlock;
(B) Facts showing the petitioner's status to initiate
proceedings;
(C) A statement that a respondent is the father;
(D) The probable time or period of time during which conception
took place; and
(E) A statement of the specific relief sought.
(b) If the initiating party is a person specified in subsection
(1)(e) of this section:
(A) The name of the mother of the child born out of wedlock or
the female pregnant with a child who may be born out of wedlock;
(B) A statement that the initiating party is the father of the
child and accepts the same responsibility for the support and
education of the child and for all pregnancy-related expenses
that he would have if the child were born to him in lawful
wedlock;
(C) The probable time or period of time during which conception
took place; and
(D) A statement of the specific relief sought.
{ + (c) An affidavit containing the information required by
ORS 109.790. + }
(3) The proceedings may be commenced by the district attorney
when requested by any person named in subsection (1) of this
section.
(4) When proceedings are initiated by a state agency, the state
and the child's mother and putative father are parties.
SECTION 4. ORS 109.175 is amended to read:
109.175. { + (1) + } { - If paternity of a child born out of
wedlock is established pursuant to a petition - } { + When a
petition to establish paternity of a child is + } filed under ORS
109.125 or an order or judgment entered pursuant to ORS 109.124
to 109.230 or { - ORS - } 416.400 to 416.470, { + the court,
upon motion, may award temporary legal and physical custody of
the child to + } the parent with
{ - physical custody - } { + whom the child resides + } at
the time of filing of the petition or the notice under ORS
416.415 { + . + } { - 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 parent with whom the child resides shall have physical
custody of the child until further order of the court if:
(a) The motion is supported by an affidavit in conformance with
ORS 109.790; and
(b) The court finds that no other person has had physical
custody of the child within the 14 days prior to the request for
temporary custody.
(2) In a contested filiation proceeding, neither parent shall
have the burden of showing a change of circumstances the first
time a court determines who should have custody. + } 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.
SECTION 5. ORS 109.119 is amended to read:
109.119. (1) 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 with a child may petition or file a
motion for intervention with the court having jurisdiction over
the custody, placement, guardianship or wardship of that child,
or if no such proceedings are pending, may petition the court for
the county in which the minor child resides for an order
providing for custody or placement of the child or visitation
rights or other generally recognized rights of a parent or person
in loco parentis. If the court determines that custody,
guardianship, right of visitation, or other generally recognized
right of a parent or person in loco parentis, is appropriate in
the case, the court shall grant such 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 under this section pending a final order.
(2) In addition to the rights granted under subsection (1) of
this section, a stepparent with a child-parent relationship, as
defined in subsection (4) of this section, who is a party in a
dissolution proceeding may petition the court having jurisdiction
for custody or visitation or may petition the court for the
county in which the minor child resides for adoption of the
child. The stepparent may also file for post decree modification
of a decree relating to child custody.
(3) A motion for intervention may be denied or a petition may
be dismissed on the motion of any party or on the court's own
motion if the petition does not state a prima facie case of
emotional ties creating a child-parent relationship or does not
allege facts that the intervention is in the best interests of
the child.
(4) As used in this section '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 18
months.
(5) Notwithstanding subsection (1) of this section, a person
who has maintained an ongoing personal relationship with
substantial continuity for at least one year, through
interaction, companionship, interplay and mutuality may petition
the court having jurisdiction over the custody, placement,
guardianship or wardship of that child, or if no such proceedings
are pending, may petition the court for the county in which the
minor child resides, for an order providing for reasonable
visitation rights. If the court determines from clear and
convincing evidence that visitation is in the best interests of
the child and is otherwise appropriate in the case, the court
shall grant visitation to the person having the relationship
described in this subsection.
(6) In no event shall costs for the representation of an
intervenor under this section be charged against funds
appropriated for indigent defense services.
{ + (7) Notwithstanding ORS 109.053 (1), the court may
require a person awarded visitation rights under this section to
provide for the support of the child, and the provisions of ORS
107.095 to 107.425 that relate to the support of children apply
to the proceeding. + }
SECTION 6. ORS 109.092 is amended to read:
109.092. When it is determined that a woman is pregnant with a
child, the woman and any man to whom she is not married and with
whom she engaged in sexual intercourse at approximately the time
of conception have an obligation to recognize that the man may be
the other person responsible for the conception. During the
months of pregnancy, the man may join the woman in acknowledging
paternity and assuming the rights and duties of expectant
parenthood. If the man acknowledges paternity of the expected
child and the woman denies that he is the father or refuses to
join him in acknowledging paternity, the man may seek relief
under ORS 109.125. If the woman wants the man to join her in
acknowledging his paternity of the expected child and the man
denies that he is the father or refuses to join her in
acknowledging paternity, the woman may seek relief under ORS
109.125. If after the birth of the child the mother decides to
surrender the child for adoption and paternity has not been
acknowledged as provided in ORS 109.070 { - (5) - }
{ + (4) + } or the putative father has not asserted his rights
in filiation proceedings, the mother has the right without the
consent of the father to surrender the child as provided in ORS
418.270 or to consent to the child's adoption.
SECTION 7. { + Section 8 of this Act is added to and made a
part of ORS 109.124 to 109.230. + }
SECTION 8. { + (1) When a putative father initiates an action
to establish paternity pursuant to ORS 109.125 and the mother of
the child or unborn child establishes by a preponderance of the
evidence that the putative father's sexual conduct that resulted
in the pregnancy would constitute a crime under ORS 163.355,
163.365, 163.375 or 163.525 if the necessary elements of any one
of those crimes were established beyond a reasonable doubt, a
rebuttable presumption exists against the propriety of entering a
paternity order.
(2) The putative father may overcome the presumption by
establishing through clear and convincing evidence that
determination of his paternity is in the best interests of the
child. In determining whether the determination of paternity
would be in the child's best interests the court shall consider
the following factors:
(a) The nature of the sexual conduct involved in the conception
of the child;
(b) The nature of the relationship between the mother and the
putative father;
(c) The nature of the relationship between the child and the
putative father;
(d) The nature of the relationship between any other child of
the mother and the putative father; and
(e) The amount of burden that may be placed on the mother and
members of the mother's family as the result of the establishment
of a parental relationship through issuance of a paternity
order. + }
SECTION 9. ORS 416.430 is amended to read:
416.430. (1) The administrator may establish paternity of a
child in the course of a support proceeding under ORS 416.400 to
416.470 when both parents sign sworn statements that paternity
has not been legally established and that the male parent is the
father of the child. The administrator may enter an order which
establishes paternity.
(2) If the parent fails to file a response denying paternity
and requesting a hearing within the time period allowed in ORS
416.415 (2), then the administrator, without further notice to
the parent, may enter an order, in accordance with ORS 416.415
(8), which declares and establishes the parent as the legal
father of the child.
(3) Any order entered pursuant to subsection (1) or (2) of this
section establishes legal paternity for all purposes. The Vital
Statistics Unit of the Health Division of the Department of Human
Resources shall prepare a new birth certificate in the new name,
if any, of the child. The original birth certificate shall be
sealed and filed and may be opened only upon order of a court of
competent jurisdiction.
(4)(a) If paternity is alleged under ORS 416.415 (3) and a
written response denying paternity and requesting a hearing is
received within the time period allowed in ORS 416.415 (2), or if
the administrator determines that there is a valid issue with
respect to paternity of the child, the administrator, subject to
the provisions of subsections { - (5) - } { + (6) + } and
{ - (6) - } { + (7) + } of this section, shall certify the
matter to the circuit court for a determination based upon the
contents of the file and any evidence which may be produced at
trial. The proceedings in court shall for all purposes be deemed
suits in equity { - , but either party shall have the right to
trial by jury on the issue of paternity - } . The provisions of
ORS 109.145 to 109.230 apply to proceedings certified to court by
the administrator pursuant to this section.
(b) Any response denying paternity and requesting a hearing
shall be sent by the enforcement office to the obligee by regular
mail.
{ + (5) If paternity is alleged under ORS 416.415 (3) and the
mother of the child or unborn child establishes by a
preponderance of the evidence that the putative father's sexual
conduct that resulted in the pregnancy would constitute a crime
under ORS 163.355, 163.365, 163.375 or 163.525 if the necessary
elements of any one of those crimes were established beyond a
reasonable doubt, then a rebuttable presumption exists against
the propriety of entering a paternity order. Notwithstanding ORS
416.430 (6), the administrator shall immediately certify the
matter to the circuit court. The circuit court shall determine
the propriety of overcoming the presumption by considering the
best interests of the child as set forth in section 8 of this
1995 Act. + }
{ - (5) - } { + (6) + } An action to establish paternity
initiated under ORS 416.400 to 416.470 shall not be certified to
court for trial unless all of the following have occurred:
(a) Blood tests have been conducted;
(b) The results of the blood tests have been served upon the
parties and notice has been given that an order establishing
paternity will be entered unless a written objection is received
within 30 days; and
(c) A written objection to the entry of an order has been
timely received from a party.
{ - (6) - } { + (7) + } Notwithstanding the provisions of
subsection { - (5) - } { + (6) + } of this section, the
matter shall be certified to court by the administrator:
(a) Within 30 days of receipt by the administrator of a timely
written objection to the entry of an order by a party under
subsection { - (5) - } { + (6) + }(c) of this section;
(b) At any time a party requests certification in writing
provided, however, that 120 days have elapsed from receipt of a
party's written denial of paternity; or
(c) Upon receipt of blood test results with a cumulative
paternity index of less than 99.
{ - (7) - } { + (8) + } Notwithstanding ORS 109.258, if the
blood tests conducted under ORS 109.250 to 109.262 result in a
cumulative paternity index of 99 or greater, evidence of the
tests, together with the testimony of the parent, shall be a
sufficient basis upon which to establish paternity and the
administrator may enter an order declaring the alleged father as
the legal father of the child unless a party objects in writing
to the entry of the order. The testimony of the parent may be
presented by affidavit.
{ - (8) - } { + (9) + } Prior to certification to court,
the administrator may attempt to resolve the issue of paternity
by discovery conducted under the Oregon Rules of Civil Procedure.
Unless otherwise specifically provided by statute, the
proceedings shall be conducted under the Oregon Rules of Civil
Procedure.
SECTION 10. ORS 109.135 is amended to read:
109.135. (1) All filiation proceedings shall be commenced in
the circuit court and shall for all purposes be deemed suits in
equity { - , but either party shall have the right to trial by
jury on the issue of paternity - } . Unless otherwise
specifically provided by statute, the proceedings shall be
conducted pursuant to the Oregon Rules of Civil Procedure.
(2) All filiation proceedings shall be commenced and tried in
the county where either the initiating party or the child
resides.
SECTION 11. ORS 109.155 is amended to read:
109.155. (1) The court { - or the jury - } , in a private
hearing, shall first determine the issue of paternity. If the
respondent admits the paternity, such admission shall be reduced
to writing, verified by the respondent and filed with the court.
If the paternity is denied, corroborating evidence, in addition
to the testimony of the parent or expectant parent, shall be
required.
(2) If the court { - or jury - } finds, from a preponderance
of the evidence, that the petitioner or the respondent is the
father of the child who has been, or who may be born out of
wedlock, the court shall then proceed to a determination of the
appropriate relief to be granted. The court may approve any
settlement agreement reached between the parties and incorporate
the same into any decree rendered, and it may order such
investigation or the production of such evidence as it deems
appropriate to establish a proper basis for relief.
(3) The court, in its discretion, may postpone the hearing from
time to time to facilitate any investigation or the production of
such evidence as it deems appropriate.
(4) The court shall have the power to order either parent to
pay such sum as it deems appropriate for the past and future
support and maintenance of the child during its minority and
while the child is attending school and the reasonable and
necessary expenses incurred or to be incurred in connection with
prenatal care, expenses attendant with the birth and postnatal
care. The court may grant the prevailing party reasonable costs
of suit, which may include expert witness fees, and reasonable
attorney fees at trial and on appeal.
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