Oregon Statutes 109.072 – Petition to vacate or set aside parentage determination
(1) As used in this section:
Terms Used In Oregon Statutes 109.072
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fraud: Intentional deception resulting in injury to another.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. See Oregon Statutes 174.100
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Summons: Another word for subpoena used by the criminal justice system.
(a) ‘Blood tests’ has the meaning given that term in ORS § 109.251.
(b)(A) ‘Parentage judgment’ means a judgment or administrative order that:
(i) Expressly or by inference determines the parentage of a child, or that imposes a child support obligation based on the parentage of a child; and
(ii) Resulted from a proceeding in which blood tests were not performed and the issue of parentage was not challenged.
(B) ‘Parentage judgment’ does not include a judgment or administrative order that determines paternity or parentage of a child conceived by assisted reproduction as defined in ORS § 109.239.
(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 parentage determination of a parentage judgment, including any child support obligations established in the parentage judgment, and for a judgment of nonparentage:
(A) A party to the parentage 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 parentage judgment have been assigned to the state.
(b) The petitioner may file the petition in the circuit court proceeding in which the parentage judgment was entered, in a related proceeding or in a separate action. The petitioner shall attach a copy of the parentage judgment to the petition.
(c) If the ground for the petition is that the parentage 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 parentage judgment.
(d) If the ground for the petition is that the parentage 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 parentage 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 parentage judgment have been assigned to the state.
(b) Provide the full name and date of birth of the child whose parentage was determined by the parentage judgment.
(c) Allege the facts and circumstances that resulted in the entry of the parentage judgment and explain why the issue of parentage 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 person whose parentage of the child was determined by the parentage 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 parentage determination of the parentage judgment, including provisions imposing child support obligations, and enter a judgment of nonparentage if the court finds by a preponderance of the evidence that:
(a) The parentage 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 parentage judgment; and
(c)(A) Blood tests establish that the person is not the biological parent of the child and the parentage determination was based on biological parentage; or
(B) The parentage determination was not based on biological parentage.
(8) If the court finds that the parentage determination of a parentage judgment was obtained by or was the result of fraud, the court may vacate or set aside the parentage determination regardless of whether the fraud was intrinsic or extrinsic.
(9) If the court finds, based on blood test evidence, that the person may be the biological parent of the child and that the cumulative paternity or parentage 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 parentage determination of a parentage judgment and determining nonparentage:
(a) Shall contain the full name and date of birth of the child whose parentage was established or declared by the parentage judgment.
(b) Shall vacate and terminate any ongoing and future child support obligations arising from or based on the parentage judgment.
(c) May vacate or deem as satisfied, in whole or in part, unpaid child support obligations arising from or based on the parentage 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 parentage determination of a parentage judgment under this section and enters a judgment of nonparentage, 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 party to the parentage judgment is the parent 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 parentage determination of a parentage judgment and determining nonparentage is not a bar to further proceedings to determine parentage, as otherwise allowed by law.
(15) If a person whose parentage of a child has been determined by a parentage judgment has died, an action under this section may not be initiated by or on behalf of the estate of the person.
(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; 2017 c.651 § 16]
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.