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. (This presumption can be challenged.)
- If a child is born within 300 days of the termination of a marriage by death, annulment, divorce, or legal separation, the husband is rebuttably presumed to be the father.
- If a child is born to unwed parents but 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. Oregon honors a voluntary acknowledgment made in another state.
- 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. This requires a blood test, and the court has authority to order a potential father to undergo such a test. If the test reflects paternity to a 99%+ certainty, than paternity is presumed and the court will enter a judgment reflecting the findings. If you object to the results of the test you should take the matter before a court. In some circumstances, 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 Child Support Services and sending these to the address stated on the form. A one-time fee of one dollar for processing your application will be deducted from the first collection made.
The mother may begin to establish paternity by filing a petition to establish paternity. The alleged father must respond within 30 days of being served with the petition, or he will 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 paperwork 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 the identity of the father. 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 (including birth costs and postnatal care), 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.