Paternity
Information
An excerpt from the Community Education booklet Family Law in Oregon
CONTENTS
Why is it important to establish a child's paternity?
What are a father's responsibilities and rights?
How can paternity be established?
For married couples, how is paternity determined?
The father who is not legally recognized wants to admit paternity. How can this be done?
What if the father or mother changes his or her mind after signing a voluntary acknowledgment of paternity form?
What if I've never admitted paternity but want to see my child now?
How can I get a court or agency order establishing paternity?
Who gets custody when paternity is established?
What should I do if I am served with court or agency papers in a paternity suit?
Why is the Division of Child Support (DCS) or the District Attorney's (DA) Office involved in my paternity case?
How is paternity determined in a legal proceeding?
What if I can't afford to pay for genetic tests?
If I have already been found to be the father, is there any way I can challenge this later?
Why is it important to establish a child's paternity?
The father of a child must be legally recognized as the parent before you can get a court or agency order that decides issues such as child custody, parenting time, and child support. Also, children whose paternity has been established may be able to get certain benefits, such as Social Security or workers' compensation, if their fathers have died or are disabled.
More information about paternity establishment, including genetic testing, can be found at www.oregonchildsupport.gov.
What are a father's responsibilities and rights?
A father who is legally recognized has a right to have either custody of the child or parenting time with the child. If he does not have custody, he is responsible for paying child support. In most cases, a father without custody also has the right to know how the child is doing in school, and information about the child's health.
A father does not have the right to have his child bear his last name. If the parents cannot agree, the judge can decide. For more information about the last name of your child, see Question 151 of the Family Law in Oregon booklet.
How can paternity be established?
For married couples, the husband is usually considered to be the legal father. See "For married couples, how is paternity determined?"
For unmarried couples, both parents can sign a voluntary acknowledgment of paternity affidavit, an official form that says that the man is the child's father. See "The father who is not legally recognized wants to admit paternity. How can this be done?"
There can be a court or agency order, signed by a judge or hearing officer, that says that the man is the child's father. See "How can I get a court or agency order establishing paternity?"
For married couples, how is paternity determined?
The husband is presumed to be the legal father if the child was born during the marriage or if the child was born within 300 days after the marriage ends because of death, annulment or divorce. This assumption can be challenged in some situations. See "If I have already been found to be the father, is there any way I can challenge this later?"
The father who is not legally recognized wants to admit paternity. How can this be done?
Both parents can sign a voluntary acknowledgment of paternity form as long as the mother was not married at any time during the 300 days before the birth of the child. This is an official form that says that the man is the father of the child. One version of the form can be obtained from the hospital at the time of birth. It must be completed within 5 days of the date of birth, and while the mother is still in the hospital and can be filed free of charge.
You can get the other version of the voluntary acknowledgment of paternity form from the child support agency handling your case, from your welfare worker, from your county health department or by calling the State Center for Health Statistics at (971) 673-1155. The form must be signed, notarized and returned to the State Center for Health Statistics or your county health department. (Most county health departments have notaries available.) If the form is filed more than 14 days after the birth, the process costs approximately $50, which includes the cost of the amended birth certificate.
These voluntary methods of establishing paternity have the same legal effect as a court order. Paternity can be changed only in limited situations. See "What if the father or mother changes his or her mind after signing a voluntary acknowledgment of paternity form?" below.
What if the father or mother changes his or her mind after signing a voluntary acknowledgment of paternity form?
There are three ways to challenge a paternity acknowledgment after it has been filed:
- A paternity acknowledgment usually can be rescinded (taken back) within 60 days of filing it with the State Center for Health Statistics. If a case about the child has been filed in an administrative or court proceeding, however, the paternity acknowledgment must be taken back before an order is entered, even if that date is less than 60 days after the paternity acknowledgment was filed. To cancel the paternity acknowledgment, a parent must sign and file a written document with the State Center for Health Statistics stating that he or she is taking back the paternity acknowledgment.
- A paternity acknowledgment can also be challenged after 60 days or the entry of a court order, by filing a court challenge and proving that the acknowledgment was signed because of fraud, duress or a material mistake of fact.
- If paternity testing has not been completed, within one year of filing a paternity acknowledgment, a parent can apply to the Division of Child Support for an order for blood tests to help determine paternity.
What if I've never admitted paternity but want to see my child now?
You can try to make arrangements with the child's mother. If you want a legal and enforceable right to visit the child, you must first be legally established as the father. If you were married to the child's mother when the child was born or if the child was born within 300 days after the marriage ended, the law considers you to be the father (unless your divorce judgment says otherwise). If you were not married to her when the child was conceived, you will have to establish your paternity of the child and ask for parenting time rights.
How can I get a court or agency order establishing paternity?
If a parent and the child are getting public assistance, DCS will usually start a paternity action on behalf of the state unless to do so puts the mother or child in danger. See Question 113 of the Family Law in Oregon booklet. If public assistance benefits are not involved, you can ask your local District Attorney (DA) to file a paternity action. You also can get a lawyer to file a paternity case in court. In most cases, there is no time limit for starting a paternity action.
For more information about paternity establishment services and genetic testing, go to www.oregonchildsupport.gov. Forms for establishing custoday and parenting time after paternity has been established are avilable at your local courthouse and online at the OJD Family Law website at: http://courts.oregon.gov/OJD/OSCA/JFCPD/Pages/FLP/Index.aspx
Who gets custody when paternity is established?
A court deciding the issue of paternity often can decide custody and child support and set up a parenting plan at the same time if one of the parents files the correct legal papers. The final court order will then state the custody, parenting plan, and child support terms.
A special custody law applies to paternity cases when there are no other court orders that establish custody and parenting time. The law says that the parent who had physical custody of a child at the beginning of the paternity case or a child support case automatically has legal custody. Also, if paternity was established by completing a paternity acknowledgment form (see The father who is not legally recognized wants to admit paternity. How can this be done?), the parent who had physical custody when that form was filed with the Center for Health Statistics automatically has legal custody.
This law might help you get your child back if the child is taken by the other parent. Final papers in a paternity or child support case, however, do not always say which parent had custody at the beginning of the case. Also, if paternity was established by completing a paternity acknowledgment form while the parents were both living with the child, this law may not be much help. You may need a separate lawsuit to decide custody and parenting time.
What should I do if I am served with court or agency papers in a paternity suit?
If you are not the father and do not want to pay child support, you must deny paternity and ask for a hearing. If you were served court papers, you must file a written response in the time stated on the papers. If DCS or a DA's office has filed the paternity suit, agency hearing request forms will be included in the papers you receive. You have 30 days to fill out and return the form to ask for a hearing. No matter who files the lawsuit, you should try to talk to a lawyer. If you cannot afford one, some legal aid offices may have an informational brochure that will help you through the process.
It is very important not to miss any DNA test appointments or court or other hearing dates listed in the papers you are given. If you do not appear, you might lose your chance to deny paternity and to be heard on the issue of child support.
Even if you admit that you are the father, you can still challenge the amount of child support requested in the papers. You will need to ask for a hearing even if you are only challenging the amount of support.
Why is the Division of Child Support (DCS) or the District Attorney's (DA) Office involved in my paternity case?
DCS gets involved when the state is paying Temporary Assistance for Needy Families (TANF), Oregon Health Plan (OHP), or foster care payments to support the child, or when the child is in the custody of the Oregon Youth Authority. In order to receive these state benefits, the custodial parent must sign over his or her support rights to the State of Oregon. The DA's office gets involved when one of the parents requests help to establish paternity.
How is paternity determined in a legal proceeding?
Unless the man admits he is the father, paternity will be decided in a court or agency hearing. The best way to prove or disprove paternity is genetic testing of the man, mother, and child. The cost of these tests varies. A judge, DCS, or the DA's office can order these tests. The genetic sample usually is taken by a "buccal swab," a wiping of the saliva (spit) from the inside of the cheek.
What if I can't afford to pay for genetic tests?
If the DA or DCS filed a lawsuit and you are low-income, the state will pay for the genetic testing. If you are found to be the father, you may be ordered to pay the state back for the costs of these tests.
If I have already been found to be the father, is there any way I can challenge this later?
Sometimes, but probably only in cases for children born in the last few years.
Acknowledgment of Paternity: If paternity was established by both parents' signatures on a joint acknowledgment of paternity affidavit on the Center for Health Statistics form, see What if the father or mother changes his or her mind after signing a voluntary acknowledgment of paternity form? for an explanation about what challenges can be made, and when.
Court or Agency Order: If paternity was established by court or agency order and you were found to be the father as a result of mistake, inadvertence, surprise or excusable neglect or due to fraud, misrepresentation or other misconduct of an adverse party, you may file a case in circuit court. If the reason you are challenging paternity is because the order was a result of mistake, inadvertence, surprise or excusable neglect, you must file within one year of the entry of the paternity order. If the reason you are challenging paternity is because the order was the result of fraud, misrepresentation or other misconduct of an adverse party, you must file within one year of learning of the fraud, misrepresentation or other misconduct. This is a complicated area of the law and you likely will need the help of an attorney.
6-10