(1) As used in this section:
(a) “Blood tests” has the meaning given that term in ORS 109.251.
(b) “Paternity judgment” means a judgment or administrative order that:
(A) Expressly or by inference determines the paternity of a child, or that imposes a child support obligation based on the paternity of a child; and
(B) Resulted from a proceeding in which blood tests were not performed and the issue of paternity was not challenged.
(c) “Petition” means a petition or motion filed under this section.
(d) “Petitioner” means the person filing a petition or motion under this section.
(2)(a) The following may file in circuit court a petition to vacate or set aside the paternity determination of a paternity judgment, including any child support obligations established in the paternity judgment, and for a judgment of nonpaternity:
(A) A party to the paternity judgment.
(B) The Department of Human Services if the child is in the care and custody of the Department of Human Services under ORS chapter 419B.
(C) The Division of Child Support of the Department of Justice if the child support rights of the child or of one of the parties to the paternity judgment have been assigned to the state.
(b) The petitioner may file the petition in the circuit court proceeding in which the paternity judgment was entered, in a related proceeding or in a separate action. The petitioner shall attach a copy of the paternity judgment to the petition.
(c) If the ground for the petition is that the paternity determination was obtained by or was the result of mistake, inadvertence, surprise or excusable neglect, the petitioner may not file the petition more than one year after entry of the paternity judgment.
(d) If the ground for the petition is that the paternity determination was obtained by or was the result of fraud, misrepresentation or other misconduct of an adverse party, the petitioner may not file the petition more than one year after the petitioner discovers the fraud, misrepresentation or other misconduct.
(3) In the petition, the petitioner shall:
(a) Designate as parties:
(A) All persons who were parties to the paternity judgment;
(B) The child if the child is a child attending school, as defined in ORS 107.108;
(C) The Department of Human Services if the child is in the care and custody of the Department of Human Services under ORS chapter 419B; and
(D) The Administrator of the Division of Child Support of the Department of Justice if the child support rights of the child or of one of the parties to the paternity judgment have been assigned to the state.
(b) Provide the full name and date of birth of the child whose paternity was determined by the paternity judgment.
(c) Allege the facts and circumstances that resulted in the entry of the paternity judgment and explain why the issue of paternity was not contested.
(4) After filing a petition under this section, the petitioner shall serve a summons and a true copy of the petition on all parties as provided in ORCP 7.
(5) The court, on its own motion or on the motion of a party, may appoint counsel for the child. However, if requested to do so by the child, the court shall appoint counsel for the child. A reasonable fee for an attorney so appointed may be charged against one or more of the parties or as a cost in the proceeding, but may not be charged against funds appropriated for public defense services.
(6) The court may order the mother, the child and the man whose paternity of the child was determined by the paternity judgment to submit to blood tests. In deciding whether to order blood tests, the court shall consider the interests of the parties and the child and, if it is just and equitable to do so, may deny a request for blood tests. If the court orders blood tests under this subsection, the court shall order the petitioner to pay the costs of the blood tests.
(7) Unless the court finds, giving consideration to the interests of the parties and the child, that to do so would be substantially inequitable, the court shall vacate or set aside the paternity determination of the paternity judgment, including provisions imposing child support obligations, and enter a judgment of nonpaternity if the court finds by a preponderance of the evidence that:
(a) The paternity determination was obtained by or was the result of:
(A) Mistake, inadvertence, surprise or excusable neglect; or
(B) Fraud, misrepresentation or other misconduct of an adverse party;
(b) The mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation or other misconduct was discovered by the petitioner after the entry of the paternity judgment; and
(c) Blood tests establish that the man is not the biological father of the child.
(8) If the court finds that the paternity determination of a paternity judgment was obtained by or was the result of fraud, the court may vacate or set aside the paternity determination regardless of whether the fraud was intrinsic or extrinsic.
(9) If the court finds, based on blood test evidence, that the man may be the biological father of the child and that the cumulative paternity index based on the blood test evidence is 99 or greater, the court shall deny the petition.
(10) The court may grant the relief authorized by this section upon a party’s default, or by consent or stipulation of the parties, without blood test evidence.
(11) A judgment entered under this section vacating or setting aside the paternity determination of a paternity judgment and determining nonpaternity:
(a) Shall contain the full name and date of birth of the child whose paternity was established or declared by the paternity judgment.
(b) Shall vacate and terminate any ongoing and future child support obligations arising from or based on the paternity judgment.
(c) May vacate or deem as satisfied, in whole or in part, unpaid child support obligations arising from or based on the paternity judgment.
(d) May not order restitution from the state for any sums paid to or collected by the state for the benefit of the child.
(12) If the court vacates or sets aside the paternity determination of a paternity judgment under this section and enters a judgment of nonpaternity, the petitioner shall send a court-certified true copy of the judgment entered under this section to the State Registrar of the Center for Health Statistics and to the Department of Justice as the state disbursement unit. Upon receipt of the court-certified true copy of the judgment entered under this section, the state registrar shall correct any records maintained by the state registrar that indicate that the male party to the paternity judgment is the father of the child.
(13) The court may award to the prevailing party a judgment for reasonable attorney fees and costs, including the cost of any blood tests ordered by the court and paid by the prevailing party.
(14) A judgment entered under this section vacating or setting aside the paternity determination of a paternity judgment and determining nonpaternity is not a bar to further proceedings to determine paternity, as otherwise allowed by law.
(15) If a man whose paternity of a child has been determined by a paternity judgment has died, an action under this section may not be initiated by or on behalf of the estate of the man.
(16) This section does not limit the authority of the court to vacate or set aside a judgment under ORCP 71, to modify a judgment within a reasonable period, to entertain an independent action to relieve a party from a judgment, to vacate or set aside a judgment for fraud upon the court or to render a declaratory judgment under ORS chapter 28.
(17) This section shall be liberally construed to the end of achieving substantial justice. [2007 c.454 §9]
Note: Section 10, chapter 454, Oregon Laws 2007, provides:
Sec. 10. Section 9 of this 2007 Act [109.072] applies to all paternity judgments, as defined in section 9 of this 2007 Act, entered before, on or after the effective date of this 2007 Act [January 1, 2008]. [2007 c.454 §10]
Note: 109.072 was added to and made a part of ORS chapter 109 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
Section: Previous 109.041 109.050 109.053 109.055 109.056 109.060 109.070 109.072 109.073 109.080 109.090 109.092 109.094 109.096 109.098 NextLast modified: August 7, 2008