21. 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.
22. What are a father's responsibilities and rights?
A father 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. 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 always 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 147.
23. How can paternity be established?
For married couples, the husband will be considered to be the child's father unless the mother, husband, or natural father proves in court that the husband is not the parent. See Question 24.
For unmarried couples, both parents can sign a sworn statement on an official form that says that the man is the child's father. See Question 25.
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 Question 27.
24. For married couples, how is paternity determined?
The husband is the legal father if the child was conceived during the marriage while the couple was living together and if the husband was able to be the child's father (not impotent or sterile). No one can challenge this. If the married couple was not living together when the child was conceived, the husband is still considered the father unless the mother, husband, or natural father proves in court that the husband is not the parent.
25. The father wants to admit paternity. How can this be done?
Both parents can sign an official statement that says that the man is the father of the child. You can get the form (a paternity affidavit) from the child support agency handling your case, from your welfare worker, your county health department, or by calling the State Health Division at (503) 731-4108 or 731-4495. The form must be signed, notarized and returned to the Health Division. (Almost all county health departments have notaries.) This process costs $40.
If the paternity form is filled out and filed shortly after birth, there is no charge for the process. The hospital where the baby is born or the county health department can assist you with this.
These voluntary methods of establishing paternity have the same legal effect as a court order. Paternity can be changed only in limited situations. See next question.
26. What if the father or mother changes his or her mind after voluntarily signing a paternity form?
Once a paternity affidavit has been filed with the Health Division, the law allows only three exceptions for canceling the paternity registration:
1.)a parent withdraws his or her consent to the paternity establishment. This must be done within the first 60 days after the form is filed with the Health Department.
2.)a parent convinces the court that he or she was defrauded or forced into signing the acknowledgment or was mistaken about important facts when he or she signed it. This must be done within 1 year after the form is filed with the Health Division; or
3.)no genetic testing has been done and a parent makes a request for testing to a court or child support agency handling the case within 1 year after the paternity form has been filed with the Health Division.
27. The man who fathered my child will not admit it. What can I do?
You can get a lawyer to file a paternity lawsuit, also called a filiation suit. In a paternity case, a judge will decide whether the man is the father if the man challenges that issue. There is no time limit for starting a paternity suit.
If you are getting welfare, the Division of Child Support (DCS, formerly known as SED) will start a paternity suit on behalf of the state, at no cost to you. DCS may file even if you do not want paternity established. But if you do not want DCS to file a paternity suit, you can ask the welfare department for a hearing. At the hearing you must show that there is a good reason, like danger to you or to the child, why a paternity suit should not be filed.
If you are not getting welfare, you can ask your local District Attorney to file a paternity suit on behalf of the state. There is no cost to you.
28. 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. But if you want a legal and enforceable right to visit the child, you must first be legally recognized as the father. If you were married to the child's mother when the child was conceived, 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.
DCS and District Attorneys handle cases to establish paternity both when a mother requests and also when a man claiming to be the father asks for this service. DCS and the District Attorneys do not handle custody or parenting time issues but should have some referrals for parents with these problems.
29. Who gets custody when paternity is established?
A court deciding the issue of paternity often can also decide custody and set up a parenting plan 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: if the final papers do not state custody and parenting time terms, then the parent who had physical custody of the child at the beginning of the paternity case automatically has legal custody. Also, if paternity was established by the sworn statement method (see Question 25), the parent who had physical custody when that form was filed with the Health Division automatically has legal custody.
This law might help you get your child back if the child is taken by the other parent. But final papers in a paternity case do not always say which parent had custody at the beginning of the case. And if paternity was established by the sworn statement method 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.
30. 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 your response in the time stated on the papers. If the Division of Child Support (DCS) has filed the paternity suit, agency hearing request forms will be included in the papers you receive. You have 30 days to make the request in writing. 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 deposition (formal questioning) or court 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 to challenge the amount of support.
31. Why is the Division of Child Support (DCS) involved in my paternity case?
DCS gets involved when the state is paying welfare or foster care payments to support the child, or when the child is in the custody of the Oregon Youth Authority. If you have been named as the father, DCS may send you a letter asking you to come in for a meeting or conference. You do not have to go but you can choose to go. You may want to talk to a lawyer about what you should do. If you do go, anything you tell them may be used against you. You do not have to sign any papers they give you, but you can if you choose. Make sure you understand what you are signing.
32. 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. These tests cost from $275-500; a judge, DCS, or the District Attorney 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.
33. What if I can't afford to pay for genetic tests?
If the District Attorney or Division of Child Support filed the lawsuit and you are low-income, the state will pay for the blood tests. If you are found to be the father, you will probably be ordered to pay the state back for the costs of these tests.
34. 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.
If paternity was established by both parents' signatures on the Health Division form, see Question 26 for an explanation about what challenges can be made, and when.
If paternity was established by court or agency order and genetic testing was not done at that time, the law says that either parent can re-open the issue, but only within one year of the paternity order. If you have a paternity case that meets these conditions and you want to re-open the issue of paternity, contact an attorney or your local child support agency (Division of Child Support or the District Attorney).