2017 ORS 109.326¹
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 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) 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. 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.

(3) Before making the determination of nonparentage, the petitioner shall 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; or

(c) The spouse repeatedly has contributed or tried to contribute to the support of the 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, 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 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 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:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF _________

_________, )

Petitioner, ) NO._____

)

) ANSWER

and )

)

_________, )

Respondent. )

[ ] I consent to the entry of a judgment of nonparentage.

[ ] 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.

(6) 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 (5) of this section.

(7) 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).

(8) If the spouse 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 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.

(9) If a spouse 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 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.

(10) There shall be sufficient proof to enable the court to grant the relief sought without notice to the spouse provided that 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.

(11) 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 spouse has met the requirements of subsection (3)(a), (b) or (c) of this section.

(12) 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.

(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 parent 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; 2017 c.651 §33]

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)

Atty. Gen. Opinions

Change of name in public records, (1977) Vol 38, p 945

Chapter 109

Law Review Cita­tions

12 WLJ 569-589 (1976)

1 Legislative Counsel Committee, CHAPTER 109—Parent and Child Rights and Relationships, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors109.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 109, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano109.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.