2013 ORS § 109.326¹
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 (Establishing paternity) or judicially determined that her husband at such time or times was not the father of the child, the husbands 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 childs 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 husbands 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 husbands telephone number or contact telephone number and the husbands current residence, mailing or contact address in the same state as the husbands home. The answer may be in substantially the following form:

______________________________________________________________________________

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 states 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 husbands attorney and to keep the attorney advised of the husbands 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 husbands 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 (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 (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).

(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 husbands 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 husbands 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 (Establishing paternity) (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 husbands 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 childs conception has the primary responsibility to protect the husbands 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 (Definitions), 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 (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]