ORS 109.326
Consent when spouse not parent


(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 109.065 (Establishing parentage) or 419B.609 (Acknowledgment or establishment of parentage) or judicially determined that the mother’s spouse at such time or times was not the parent of the child, the spouse’s authorization or waiver is not required in adoption, juvenile court or other proceedings concerning the custody of the child.

(2)

Intentionally left blank —Ed.

(a)

If parentage of the child has not been determined, a determination of nonparentage may be made by any court having adoption, divorce or juvenile court jurisdiction.

(b)

Except as provided in subsection (11) of this section, the testimony or affidavit of the mother or the spouse or another person with knowledge of the facts filed in the proceeding constitutes competent evidence before the court making the determination.

(c)

The provisions of this section relating to Indian children do not apply if the determination of nonparentage is being made by a court having divorce jurisdiction or jurisdiction to decide custody between unmarried parents.

(3)

Before the court may make the determination of nonparentage, the petitioner shall:

(a)

Conduct the inquiry described in ORS 419B.636 (Inquiry to determine whether child is Indian child) (2) to determine whether the petitioner has reason to know that the child is an Indian child; and

(b)

Serve on the spouse a summons and a true copy of a motion and order to show cause why a judgment of nonparentage should not be entered if:

(A)

There has been a determination by any court of competent jurisdiction that the spouse is the parent of the child;

(B)

The child resided with the spouse at any time since the child’s birth;

(C)

The spouse repeatedly has contributed or tried to contribute to the support of the child; or

(D)

The petitioner has reason to know that the child is an Indian child.

(4)

When the petitioner is required to serve the spouse with a summons and a motion and order to show cause under subsection (3) of this section:

(a)

Service must be made in the manner provided in ORCP 7 D and E, except as provided in subsection (7) of this section. Service of the summons and the motion and order to show cause 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.

(b)

If the petitioner has reason to know that the child is an Indian child, the petitioner shall serve copies of the motion, together with the notice of proceeding required under ORS 419B.639 (Notice to tribe in emergency proceeding) (3), on:

(A)

Each tribe of which the child may be a member or in which the Indian child may be eligible for membership;

(B)

The child’s parents;

(C)

The child’s Indian custodian, if applicable; and

(D)

The appropriate United States Bureau of Indian Affairs Regional Director listed in 25 C.F.R. 23.11(b), if the identity or location of the child’s parents, Indian custodian or tribe cannot be ascertained.

(c)

The petitioner shall file a declaration of compliance under penalty of perjury made in the manner described by ORCP 1 E, that includes:

(A)

A statement and documentation, as described by the Department of Human Services by rule, of the efforts described in ORS 419B.636 (Inquiry to determine whether child is Indian child) (2) that the petitioner made to determine whether there is reason to know that the child is an Indian child; and

(B)

If the petitioner has reason to know that the child is an Indian child:
(i)
A statement describing the efforts the petitioner made, as required under ORS 109.302 (Consent to adoption of Indian child) (2)(c), to prevent the break up of the family or to reunite the family; and
(ii)
A copy of each notice of proceeding the petitioner served as required under paragraph (b) of this subsection, together with any return receipts or other proof of service.

(5)

The inquiry required under subsection (3)(a) of this section and notice required under subsection (4)(a) of this section may be combined with the inquiry and notice required under ORS 109.285 (Petition for adoption) or 109.385 (Readoption proceeding) if the motion and order to show cause is filed concurrently with the petition for adoption or readoption under ORS 109.285 (Petition for adoption) or 109.385 (Readoption proceeding).

(6)

A summons under subsection (3) of this section must contain:

(a)

A statement that if the spouse 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 spouse’s absence, may take any action that is authorized by law, including but not limited to entering a judgment of nonparentage on the date the answer is required or on a future date.

(b)

A statement that:

(A)

The spouse 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 spouse is served with the summons or, if service of the summons 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 spouse must inform the court and the petitioner of the spouse’s telephone number or contact telephone number and the spouse’s current residence, mailing or contact address in the same state as the spouse’s home. The answer may be in substantially the following form:

FOR THE COUNTY OF _________
_________, )
Petitioner, ) NO._____
)
) ANSWER
and )
)
_________, )
Respondent. )
:BOX. I consent to the entry of a judgment of nonparentage.
:BOX. I do not consent to the entry of a judgment of nonparentage. The court should not enter a judgment of nonparentage for the following reasons:




_________________________
__________________
Signature
DATE:_____________________
ADDRESS OR CONTACT ADDRESS:
_____________________
_____________________
TELEPHONE OR CONTACT TELEPHONE:
_____________________

(c)

A notice that, if the spouse 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 spouse to appear personally; and

(C)

May schedule other hearings related to the petition and may order the spouse to appear personally.

(d)

A notice that the spouse 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 spouse has the responsibility to maintain contact with the spouse’s attorney and to keep the attorney advised of the spouse’s whereabouts.

(7)

A spouse 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 spouse 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 spouse shall inform the court and the petitioner of the spouse’s telephone number or contact telephone number and current address, as defined in ORS 25.011 (“Address” defined). The answer may be in substantially the form described in subsection (6) of this section.

(8)

If the spouse requests the assistance of appointed counsel and the court determines that the spouse is financially eligible, the court shall appoint an attorney to represent the spouse at state expense. Appointment of counsel under this subsection is subject to ORS 135.055 (Compensation and expenses of appointed counsel), 151.216 (Duties) and 151.219 (Public defense services executive director). The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines adopted under ORS 151.216 (Duties).

(9)

If the spouse files an answer as required under subsection (7) of this section, the court, by oral order made on the record or by written order provided to the spouse in person or mailed to the spouse at the address provided by the spouse, shall:

(a)

Inform the spouse 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 spouse 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 spouse that, if the spouse 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 spouse’s absence, may take any action that is authorized by law, including but not limited to entering a judgment of nonparentage on the date specified in the order or on a future date, without the consent of the spouse.

(10)

Intentionally left blank —Ed.

(a)

Upon receiving the petitioner’s declaration of compliance under subsection (4)(c) of this section, the court shall review the petitioner’s statements and documentation and order that the adoption may proceed if the court finds that the petitioner satisfied the inquiry requirements under ORS 419B.636 (Inquiry to determine whether child is Indian child) (2) and, if applicable, the notice requirements under ORS 419B.639 (Notice to tribe in emergency proceeding) (2).

(b)

If the court finds that the petitioner failed to satisfy the inquiry or, if applicable, notice requirements under ORS 419B.636 (Inquiry to determine whether child is Indian child) (2) and 419B.639 (Notice to tribe in emergency proceeding) (2), or if the documentation is insufficient for the court to make those findings, the court shall direct the petitioner to cure the inquiry or notice deficiency and file an amended declaration of compliance. The court shall order the petitioner to appear and show cause why the court should not deny the motion and order to show cause if the petitioner fails to file the amended declaration of compliance within a reasonable amount of time.

(11)

Intentionally left blank —Ed.

(a)

If a spouse fails to file a written answer as required in subsection (7) 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 spouse and in the spouse’s absence, may take any action that is authorized by law, including but not limited to entering a judgment of nonparentage.

(b)

Notwithstanding paragraph (a) of this subsection, the court may not enter a judgment of nonparentage unless the court finds that the petitioner complied with the inquiry requirements under ORS 419B.636 (Inquiry to determine whether child is Indian child) (2).

(12)

If the child is an Indian child:

(a)

The court may not enter a judgment of nonparentage with the consent of the spouse unless:

(A)

The consent clearly sets out the conditions to the consent, if any;

(B)

Prior to the execution of the consent, the court explains to the spouse, on the record in detail and in the language of the spouse, the spouse’s right to legal counsel, the terms and consequences of the consent and that the spouse may withdraw the consent at any time prior to the entry of a judgment of adoption or readoption under ORS 109.350 (Judgment of adoption or readoption);

(C)

The spouse executes the consent in person before the court not less than 10 days following the date of the Indian child’s birth; and

(D)

After the spouse executes the consent, the court certifies that the court provided the explanation in the manner required under subparagraph (B) of this paragraph and that the spouse fully understood the explanation.

(b)

Notwithstanding subsection (9) or (11) of this section, the court may not enter a judgment of nonparentage without the consent of the spouse unless:

(A)

The court has offered to order mediation through the Department of Human Services, or, if there is mutual party agreement to private mediation and to the party assumption of costs, through other mediation services, between the petitioner, spouse, Indian child’s tribe and, if applicable, the proposed adoptive placement;

(B)

If requested by the tribe, an agreement is in place that requires the petitioner or, if applicable, the proposed adoptive placement to maintain connection between the Indian child and the Indian child’s tribe; and

(C)

The court finds that:
(i)
The petitioner complied with the notice requirements as required under ORS 419B.639 (Notice to tribe in emergency proceeding) (2);
(ii)
Despite petitioner’s active efforts, evidence, including the testimony of one or more qualified expert witnesses under ORS 419B.642 (Qualified expert witness), establishes beyond a reasonable doubt that the continued custody of the Indian child by the spouse is likely to result in serious emotional or physical damage to the Indian child and that the petitioner’s active efforts under ORS 419B.645 (Active efforts) to reunite the Indian family did not eliminate the necessity for termination of the spouse’s parental rights based on serious emotional or physical damage to the Indian child; and
(iii)
That the adoptive placement complies with the placement preferences under ORS 419B.654 (Placement preferences) (2) or, if not, a finding upon the petitioner’s motion under ORS 419B.654 (Placement preferences) (3) that good cause exists for placement contrary to the placement preferences in ORS 419B.654 (Placement preferences) (2).

(c)

The evidence under paragraph (b)(C)(ii) of this subsection must show a causal relationship between the particular conditions in the Indian child’s home and the likelihood that the spouse’s continued custody will result in serious emotional or physical damage to the Indian child who is the subject of the adoption proceeding. Evidence that shows the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse or nonconforming social behavior does not, by itself, establish a causal relationship as required by this paragraph.

(13)

There shall be sufficient proof to enable the court to grant the relief sought without notice to the spouse if:

(a)

The affidavit of the mother of the child, of the spouse 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 the mother’s spouse at the time of conception of the child and that the spouse is not the parent of the child;

(B)

That the spouse has not been judicially determined to be the parent of the child;

(C)

That the child has not resided with the spouse; and

(D)

That the spouse has not contributed or tried to contribute to the support of the child; and

(b)

The court finds by clear and convincing evidence, after due diligence on the part of the petitioner, that the child is not an Indian child.

(14)

Notwithstanding ORS 109.070 (Presumption of parentage) (1)(a), service of a summons and a motion and order to show cause on the spouse under subsection (3) of this section is not required and the spouse’s consent, authorization or waiver is not required in adoption proceedings concerning the child unless the child is an Indian child or the spouse has met the requirements of subsection (3)(b)(A), (B) or (C) of this section.

(15)

A spouse who was not cohabiting with the mother at the time of the child’s conception has the primary responsibility to protect the spouse’s rights.

(16)

Nothing in this section shall be used to set aside an act of a permanent nature, including but not limited to adoption, unless the parent establishes, within one year or, if the child is an Indian child, four years after the entry of the order or general judgment, as defined in ORS 18.005 (Definitions), fraud on the part of the petitioner with respect to the matters specified in subsection (13)(a) of this section.

(17)

If the child is an Indian child, the child’s tribe or Indian custodian may intervene at any time as a matter of right. [1957 c.710 §8 (109.312 to 109.329 (Adoption of person 18 years of age or older or legally married) 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; 2017 c.651 §33; 2021 c.398 §26]

Source: Section 109.326 — Consent when spouse not parent, https://www.­oregonlegislature.­gov/bills_laws/ors/ors109.­html.

Notes of Decisions

The payment of money by adoptive parents to the natural parent vitiates any consent which might have been given. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied

Law Review Citations

53 OLR 532-540 (1974)

109.001
Breast-feeding in public place
109.003
Attorney fees
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
109.060
Legal status and legal relationships when parents not married
109.065
Establishing parentage
109.070
Presumption of parentage
109.072
Petition to vacate or set aside parentage determination
109.073
Social Security number of parent in paternity order
109.090
Interpretation of ORS 109.060 to 109.090
109.092
Obligation to recognize responsibility for conception
109.094
Rights of parent when parentage established
109.096
Notice to putative father when parentage not established
109.098
Objection of putative father in proceeding referred to in ORS 109.096
109.100
Petition for support
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
109.124
Definitions for ORS 109.124 to 109.230
109.125
Who may initiate proceedings
109.135
Circuit court jurisdiction
109.145
Court may proceed despite failure to appear
109.155
Hearing
109.165
Vacation or modification of judgment
109.175
Determination of legal custody after parentage established
109.225
Notice to Center for Health Statistics after petition filed
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
109.239
Rights and obligations of children resulting from assisted reproduction
109.243
Relationship of child resulting from assisted reproduction to mother’s spouse
109.247
Application of law to children resulting from assisted reproduction
109.250
Short title
109.251
“Blood tests” defined
109.252
Authority for blood test
109.254
Selection of experts to make tests
109.256
Compensation of experts
109.258
Effect of test results
109.259
Temporary child support pending determination of parentage
109.260
Applicability to criminal actions for nonsupport
109.262
Uniformity of interpretation
109.264
Parties
109.266
Definitions for ORS 109.266 to 109.410
109.268
Interpretation of adoption laws
109.270
Rules regarding home studies and placement reports
109.272
Court required to act within six months of filing of petition for adoption
109.274
Confidentiality of petitioners
109.276
Petition for adoption
109.278
ICWA compliance report
109.281
Financial disclosure statement to be filed with petition
109.283
Application for home study by Oregon resident
109.285
Petition for adoption
109.287
Adoption Summary and Segregated Information Statement
109.289
Separate record of the case
109.301
Consent to adoption in general
109.302
Consent to adoption of Indian child
109.322
Consent of parent with mental illness or intellectual disability
109.323
Consent when custody of child has been awarded in divorce proceedings
109.324
Consent when parent has deserted or neglected child
109.325
Consent by Department of Human Services or approved child-caring agency of this state
109.326
Consent when spouse not parent
109.327
Consent by organization located outside Oregon
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 when parent does not consent
109.331
Consenting agency disclosure of county and case number of adoption proceeding
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
109.346
Adoption-related counseling for birth parent
109.347
Civil action for failure to pay for counseling
109.350
Judgment of adoption or readoption
109.353
Notice of voluntary adoption registry required before judgment entered
109.360
Change of adopted child’s name
109.381
Effect of judgment of adoption
109.382
Vacating adoption of Indian child when parental consent to adoption obtained by fraud or duress
109.383
Notice of vacated judgment of adoption of Indian child or termination of adoptive parent’s parental rights to Indian child
109.385
Readoption proceeding
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
109.425
Definitions for ORS 109.425 to 109.507
109.430
Policy and purpose
109.435
Adoption records to be permanently maintained
109.445
Information of registry confidential
109.450
Child placement agency to maintain registry
109.455
Persons eligible to use registry
109.460
Persons eligible to register
109.465
Content of affidavit
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
109.502
Search for birth parents, putative father, genetic siblings or county where adoption finalized
109.503
Access to adoption records for search
109.504
Effect on subsequent searches when person sought in initial search refuses contact
109.505
Support services
109.506
Rulemaking
109.507
Access to Department of Human Services records required
109.510
Age of majority
109.520
Majority of married persons
109.570
Legislative findings
109.572
Definitions for ORS 109.570 to 109.580
109.575
Authority of relative caregiver to consent to medical treatment and educational services for minor child
109.580
Relative caregiver affidavit
109.610
Right to care for certain sexually transmitted infections without parental consent
109.640
Right to medical or dental treatment without parental consent
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 by mental health care provider without minor’s consent
109.685
Immunity from civil liability for person providing treatment or diagnosis
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
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
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
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
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
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
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
109.831
Application and construction
109.834
Severability clause
109.990
Penalty
Green check means up to date. Up to date