It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
What is paternity?
Paternity means establishing legally that a person who was not married
to the mother of a child at the child’s birth is the legal
father of that child. Once paternity is established, the father gains
rights related to custody and visitation and obligations related
to the support of the child, and the child gains the right to inherit
from the father and receive governmental benefits based on his earnings.
How is paternity established?
In Oregon there are several ways paternity is established by law:
- "If a child is born during marriage the husband is presumed to be the father.
- "If a child is born and the parents later marry, they can sign a notarized “Voluntary Acknowledgment of Paternity” form to be filed with the state.
- "If an unmarried father agrees to paternity both parents can sign a “Voluntary Acknowledgment of Paternity” at the hospital or birthing center when the child is born, or both can sign a notarized “Voluntary Acknowledgment of Paternity” after the child is born. The father’s name is then added to the birth certificate.
- "When there is no agreement on paternity either the mother, the father or the state of Oregon can establish paternity through court proceedings.
How is paternity usually proven?
Genetic, or DNA, testing is most often done, and it is the most
accurate method of determining the biological father of the child.
Genetic testing will state how likely it is that you are or are not
the father. If you object to the results of the test you should take
the matter before a court. Paternity can also be proven in court by
documentary and testimonial evidence (see description of the court
procedure below). You will find a lawyer helpful if you wish to dispute
paternity.
Why would the state file a paternity case?
Oregon brings a paternity case for two reasons: to reimburse the state
if the mother or the child are receiving state medical or welfare benefits;
or because the mother is not living with the father and she has asked
the state to establish a child support order on behalf of the child.
The state will personally serve the alleged father a form called a “Notice
and Finding of Financial Responsibility.” This form starts with
the assumption that the person served is the father and it orders him
to pay support, to provide medical insurance if available to him, and
to take a paternity test if paternity needs to be established. If you
object to what the state has requested in its notice, you must file
a document stating you wish to have a hearing on the matter.
How does a parent establish paternity?
The father may establish paternity through the Oregon Child Support
Program by filling out an “Application for Services and Affidavit” and
sending these to the address stated on the form, along with a fee of
$1.00.
The mother may begin to establish paternity by filing a lawsuit. The
alleged father must respond within 30 days of being served with the
lawsuit or be automatically declared the father. Both parties to this
type of lawsuit must pay court fees to file their paperwork, or they
must qualify for a fee waiver. The court sets a hearing date after
the responding paper is filed.
What happens at the court hearing?
Whether the action is started by a parent or the state, each party
has the right to a trial before a judge. The court may require genetic
parentage tests before issuing an order. At trial each side presents
evidence to prove who the father is. Examples include: the results
of a genetic test if one was done; statements of parties related to
their dating or living situation during the time the child was conceived;
whether the mother had more than one partner during that period; whether
the alleged father admitted he was the father or after the birth acted
as if was the father; and whether the child strongly resembles the
father. If the judge concludes that the alleged father is the legal
father then the judge will decide other issues in the case, including
child support, health insurance, medical bills, court costs and legal
fees. If other issues such as custody or parenting time are properly
presented in the documents filed, then those issues will be addressed
as well.
If paternity has already been determined can a court set it aside?
There are several timelines to be aware of to set aside a paternity
determination:
- "You have 60 days after filing a Voluntary Acknowledgement of Paternity to request that the father’s name be removed from the birth certificate, or more than 60 days if the request is based on fraud, duress or material mistake of fact.
- "You have one year after filing a Voluntary Acknowledgement of Paternity, or after an order has been entered by the state, to request parentage tests if they were not completed.
- "If paternity was established by order or judgment, you have one year to petition to set aside the paternity due to mistake, inadvertence, surprise or excusable neglect.
- "If paternity was established by order or judgment, and you wish to set aside the paternity due to fraud, misrepresentation or conduct of an adverse party, you have one year from your discovery of the fraud, misrepresentation or other misconduct.
In a case to set aside a paternity determination the court will likely
order blood tests to show you are not the biological father (showing
less than a 99 percent possibility), and then the court must find that
granting a judgment of non-paternity is not inequitable. Other requirements
may also apply, depending on the facts of the case.
Successfully setting aside a paternity determination ends future child
support obligations and eliminates any accumulated unpaid support.
It does not, however, make possible a refund of child support payments
already made.
Legal editor: Melya Stylos, May 2008.