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    GV70's Avatar
    GV70 Posts: 2,918, Reputation: 283
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    #21

    Dec 14, 2008, 03:56 PM
    Quote Originally Posted by ScottGem View Post
    OK so 109.125 gives the bio father the rights to contest, but is there any time frame by which he must file?
    Yes-there is time frame... till child's 18 birthday.
    109.125 gives the bio father the rights to contest only if there was a legal separation. In this case the main problem is BC and its absent father's name.
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    #22

    Dec 14, 2008, 03:58 PM

    Ewww, bad for the OP then
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    #23

    Dec 14, 2008, 04:02 PM
    Quote Originally Posted by ScottGem View Post
    ewww, bad for the OP then
    People have to live with the consequences of their actions and lives.
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    #24

    Dec 14, 2008, 04:07 PM

    In these conditions the OP does not have standing to ask for back child support/she has ever known facts/, but the BF has claim grounds for distress.
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    #25

    Dec 14, 2008, 05:44 PM
    Quote Originally Posted by ScottGem View Post
    First, frankly I don't think you can afford NOT to have an attorney if the bio father has one. Not if you want him out of your lives.

    As Judy noted there is no predicting what a judge will do as far as visitation is concerned. But I do have good news for you. You need to get VERY familiar with ORS 109.070-072. The way I read those statutes, if you are your husband were legally married at the time of conception then he is considered the legal father. I'm less clear on this, but I think a challenge to legal paternity needs to be mounted within 2 years. Since your child is 4, I think the bio father's window of opportunity has past and I believe a judge will rule that your husband is the legal father and the bio father has no rights.

    But I'm not an attorney so I can't guarantee that's the way things will go.

    You also need to prepare all the evidence you can on the bio father's unfitness as a back up. If the judge rules for him, then you can probably force supervised visitation at least initially.

    But I really think you should start off with by invoking 109.070 and claiming that your husband is the legal father and the its past the time to challenge that.

    Good luck and keep us posted.

    Thank you so much you have made my day. I will keep you posted.
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    #26

    Dec 14, 2008, 06:13 PM
    Quote Originally Posted by spershing View Post
    Thank you so much you have made my day. I will keep you posted.
    Well you need to read further. There are other statutes I didn't look at.
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    #27

    Dec 14, 2008, 07:58 PM
    Quote Originally Posted by GV70 View Post
    people have to live with the consequences of their actions and lives.
    I understand that people have to live with the consequences of their actions but my child should not have to.
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    #28

    Dec 14, 2008, 08:45 PM

    I haven't looked at the Oregon statute yet but I can tell you under California law (Oregon often follows our lead on things) the bio-dad is out. I frankly don't think he has any rights whatsoever- none under the relevant statute and no constitutional arguments to fall back on either. His DNA test means nothing and is irrelevant if it wasn't ordered by the court.

    Understanding this is Oregon, I'll take a look at 109.070 and see if it changes my mind. But in California, as I said, you'd have nothing to worry about and could tell the bio-dad to get lost. If he went to court you'd stand a very good chance of having his case through out.
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    #29

    Dec 14, 2008, 08:54 PM

    Oregon's law looks an awful lot like California's but I'd have to research the case annotations to provide a definitive answer, which I don't have access to at the moment.

    It seems the husband has a presumption of paternity (irrespective of the biology) and the bio-dad has none. The DNA testing is irrelevant as it was not court ordered.

    Sounds like a pretty strong case against bio-dad ever prevailing.
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    #30

    Dec 15, 2008, 12:41 AM
    Quote Originally Posted by cadillac59 View Post
    I haven't looked at the Oregon statute yet but I can tell you under California law (Oregon often follows our lead on things) the bio-dad is out. I frankly don't think he has any rights whatsoever- none under the relevant statute and no constitutional arguments to fall back on either. His DNA test means nothing and is irrelevant if it wasn't ordered by the court.

    Understanding this is Oregon, I'll take a look at 109.070 and see if it changes my mind. But in California, as I said, you'd have nothing to worry about and could tell the bio-dad to get lost. If he went to court you'd stand a very good chance of having his case through out.
    In my view the child does not have a legal father in this case.109.070 is not fully applicable because no one is listed as a father on BC.In this way there is no conclusive presumption that the husband is the legal father.
    Second-the OP allows BF to have a sort of relationship with his son and co-operate voluntary with him/ for DNA tests for example/.
    Oregon law is designated to protect intact families from third party intruders only if both/ husband and wife/ have taken their legal responsibilities but in this case husband has never done it.HE IS NOT ON CHILD'S BC.
    Here it has to be read :
    ORS 109.070(1) – that a married woman's husband is rebuttably presumed to be the father of children born to her during the marriage.
    109.124 2) “Child born out of wedlock” means a child born to an unmarried woman or to a married woman by a man other than her husband.
    ORS 109.125 (1) Any of the following may initiate proceedings under this section:
    (d) A [person] man claiming to be the father of a child born out of wedlock or of an
    Unborn child who may be born out of wedlock;
    (A) The name of the mother of the child born out of wedlock or the [female] woman
    Pregnant with a child who may be born out of wedlock;
    (B) The name of the mother's husband if the child is alleged to be a child born to a
    Married woman by a man other than her husband.
    [(B)] (C) Facts showing the petitioner's status to initiate proceedings;
    [(C)] (D) A statement that a respondent is the father;

    Here the case is not paternity disestablishment but paternity establishment.
    109.125 requires him to file a motion for PE,to name mother's husband as a party
    Quote Originally Posted by spershing View Post
    ] My husband and I are still together but he did not want to be on the birth certificate….
    .to present all facts/
    Quote Originally Posted by spershing View Post
    biological father found out about his son through a mutual acquaintance 10 months ago and since has demanded to see his son and trying to break up my marriage….I have documented all the times I have let him see his son…Through DNA testing it has been proven that he is the father but he is not on the birth certificate….The DNA test was done at DNA services of America and will hold up in court and this was performed under his BF wish.
    (7) If a man's paternity of a child has been established under ORS 109.070 and the
    Paternity has not been disestablished before proceedings are initiated under ORS 109.125,
    The court may not render a judgment under ORS 109.124 to 109.230 establishing another
    Man's paternity of the child unless the judgment also disestablishes the paternity
    Established under ORS 109.070
    SECTION 2. ORS 109.103 is amended to read:

    ORS 109.124, as amended by section 20, chapter 160, Oregon Laws 2005, is
    Amended to read:
    109.124. As used in ORS 109.124 to 109.230, unless the context requires otherwise:
    * * *
    (2) “Child born out of wedlock” means a child born to an unmarried woman[,] or to a
    Married woman by a man other than her husband[, if the conclusive presumption in ORS 109.070
    (1)(a) does not apply]
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    #31

    Dec 15, 2008, 06:51 AM

    Just to mediate this, I can see the positions both Cadillac and GV are taking. This is why we have lawyers and judges to interpret the written statutes. What this means to the OP is that a court will have to decide this based on the judges interpretation of the law. It also means, that while there is some room for optimism, you will be much better off having an attorney devise the best strategy for you.
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    #32

    Dec 15, 2008, 09:14 AM
    Quote Originally Posted by GV70 View Post
    In my view the child does not have a legal father in this case.109.070 is not fully applicable because no one is listed as a father on BC.In this way there is no conclusive presumption that the husband is the legal father.
    Second-the OP allows BF to have a sort of relationship with his son and co-operate voluntary with him/ for DNA tests for example/.
    Oregon law is designated to protect intact families from third party intruders only if both/ husband and wife/ have taken their legal responsibilities but in this case husband has never done it.HE IS NOT ON CHILD'S BC.
    Here it has to be read :
    ORS 109.070(1) – that a married woman’s husband is rebuttably presumed to be the father of children born to her during the marriage.
    109.124 2) “Child born out of wedlock” means a child born to an unmarried woman or to a married woman by a man other than her husband.
    ORS 109.125 (1) Any of the following may initiate proceedings under this section:
    (d) A [person] man claiming to be the father of a child born out of wedlock or of an
    unborn child who may be born out of wedlock;
    (A) The name of the mother of the child born out of wedlock or the [female] woman
    pregnant with a child who may be born out of wedlock;
    (B) The name of the mother's husband if the child is alleged to be a child born to a
    married woman by a man other than her husband.
    [(B)] (C) Facts showing the petitioner's status to initiate proceedings;
    [(C)] (D) A statement that a respondent is the father;

    Here the case is not paternity disestablishment but paternity establishment.
    109.125 requires him to file a motion for PE,to name mother's husband as a party.to present all facts/

    (7) If a man's paternity of a child has been established under ORS 109.070 and the
    paternity has not been disestablished before proceedings are initiated under ORS 109.125,
    the court may not render a judgment under ORS 109.124 to 109.230 establishing another
    man's paternity of the child unless the judgment also disestablishes the paternity
    established under ORS 109.070
    SECTION 2. ORS 109.103 is amended to read:

    ORS 109.124, as amended by section 20, chapter 160, Oregon Laws 2005, is
    amended to read:
    109.124. As used in ORS 109.124 to 109.230, unless the context requires otherwise:
    * * *
    (2) “Child born out of wedlock” means a child born to an unmarried woman[,] or to a
    married woman by a man other than her husband[, if the conclusive presumption in ORS 109.070
    (1)(a) does not apply]
    First I would like to thank you for the information that you have shared, I find it very helpful.
    Correct me if I'm wrong please, but if I read the statues right then being that my husband and I were and are still married then he is considered the father and the BF does not have a case.? Does this apply if I have allowed the BF to see his once a week for 10 months. It is not that I'm trying to take my son out of his life as it is that I want full control and very little association so he cannot make any of his demands and threats on me and that my son is not influenced by his very dark way of life. Under what circumstances does he have a case against me in this situation. Does it help that I have documented his verbal abuse toward me along with violent outbreaks? Is there a date within the courts it may be thrown out because of it time relavence. I believe that the courts will look at his situation as stable because he lives with his mother who is very wealthy and a complete support for him.
    Also- I tried looking online for the ors 109.070-072 and could not find anything that I could read that you quoted, where can I research it online?
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    #33

    Dec 15, 2008, 09:34 AM

    Well, the problem here is that your husband is not on the because. If he were I think that 109.070 would directly apply. But As GV70 points out, 109.125 does give him a point of appeal.

    Here's a link to Oregon chapter 109

    Chapter 109 — Parent and Child Rights and Relationships
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    cadillac59 Posts: 1,326, Reputation: 94
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    #34

    Dec 15, 2008, 04:49 PM

    While we are talking about Oregon and not California, I fail to see how the husband not being on the birth certificate has any bearing on the fact that he was married to the mother when the child was born. Marriage can certainly be proven by means of other than the birth certificate and the Oregon statute does not mention birth certificates from what I've read. I do know that in California a husband could assert either the conclusive or non-conclusive presumptions of paternity even if not on the because. Maybe I missed something in reading the Oregon statute? It seems this view is based upon the opinion of an Oregon attorney that GV contacted, which is fine. But it would have been helpful had that lawyer actually cited a statute or case authority for the proposition because it seems odd.

    If for any reason the Oregon lawyer might have been mistaken on this point (and I'm not saying he or she was) it would seem the husband has a presumption of paternity and the bio-dad does not. Oregon and California differ in that there appears not to be a time limit to challenge Oregon's conclusive marital presumption and it also seems husband and wife may consent to a 3rd party challenge. From what I can tell if either husband or wife objected to the bio-dad's assertion of paternity, I think bio-dad would lack standing to even go to court over the issue.
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    #35

    Dec 15, 2008, 05:31 PM
    Quote Originally Posted by cadillac59 View Post
    While we are talking about Oregon and not California, I fail to see how the husband not being on the birth certificate has any bearing on the fact that he was married to the mother when the child was born. Marriage can certainly be proven by means of other than the birth certificate and the Oregon statute does not mention birth certificates from what I've read. I do know that in California a husband could assert either the conclusive or non-conclusive presumptions of paternity even if not on the b/c. Maybe I missed something in reading the Oregon statute? It seems this view is based upon the opinion of an Oregon attorney that GV contacted, which is fine. But it would have been helpful had that lawyer actually cited a statute or case authority for the proposition because it seems odd.

    If for any reason the Oregon lawyer might have been mistaken on this point (and I'm not saying he or she was) it would seem the husband has a presumption of paternity and the bio-dad does not. Oregon and California differ in that there appears not to be a time limit to challenge Oregon's conclusive marital presumption and it also seems husband and wife may consent to a 3rd party challenge. From what I can tell if either husband or wife objected to the bio-dad's assertion of paternity, I think bio-dad would lack standing to even go to court over the issue.
    Thank you very much.
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    GV70 Posts: 2,918, Reputation: 283
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    #36

    Dec 16, 2008, 01:56 AM
    Quote Originally Posted by ScottGem View Post
    This is why we have lawyers and judges to interpret the written statutes. What this means to the OP is that a court will have to decide this based on the judges interpretation of the law.
    WOW-here we are in agreement:)
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    #37

    Dec 16, 2008, 06:42 AM
    ATTEMPT AT READING OREGON FAMILY LAW


    Some States limit the time within which a parent may seek to establish Paternity. For example, in California, a husband only has 2 years to file a paternity action. Oregon does not have time limit. ORS 109.070 is the fundamental Oregon statute on determining paternity. Subsection one provides three principal means by which a man's status as a child's legal father can be established: 1) marriage to the child's mother, 2) judicial filiation proceedings, and 3) voluntary acknowledgments by the mother and alleged father.
    ORS109.070(1) also includes a catchall provision allowing paternity to be established by “other provision of law.”
    ORS 109.070(1)(a) provided that if a married
    Woman and her husband were cohabiting when a child was conceived and the husband was not infertile, he was conclusively presumed to be the father of children born to her. Subsection (1)(b) of the statute provided that a married woman's husband was rebuttably presumed to be the father of her children born during the marriage.


    While the conclusive presumption
    Is no longer justified by lack of reliable evidence about biological parentage, it does protect married couples raising children who are not the husband's biological offspring from outsiders to the marriage who want to establish the husband's nonpaternity.

    While the second presumption of paternity, which applied when
    The parties were not living together at conception, could be rebutted.
    Under existing Oregon law, a judgment of paternity is res judicata as to parties to the proceeding. ORCP 71(B) provides that a judgment procured by mistake, fraud, misrepresentation or other misconduct of an adverse party is an exception to general principles of res judicata If the evidence from properly conducted blood tests excluded the man as the child's biological father, the court was required to enter a finding of nonpaternity if it found that fraud had been committed.160 § 9(7).
    If the court found no fraud, it was required to enter a finding of nonpaternity if the petitioner proved that the finding would not cause “undue harm to the child” and that 1) the legal father had not adopted the child, 2) the child was not conceived by artificial insemination while the legal father and the mother were married, 3) the petitioner had not acted to prevent the biological father from asserting his parental rights, and 4) the petitioner, with knowledge that the legal father was not the biological father, had not taken any action to affirm
    The legal father's parentage of the child or failed to respond to a judicial or administrative proceeding to establish paternity after having received notice and been given an opportunity to be heard. § 9(7)(A)-(F).
    The presumption of paternity may be challenged in court by the
    Mother, her husband, or by a man alleging himself to be the child's biological father. The challenge must be brought within two years of the child's birth.The statute of limitations does not apply if the husband and wife did not cohabit or engage in sexual intercourse during the time that the child was probably conceived and if the husband never openly acknowledged the child as his UPA§ 607(b).
    ORS 109.070(2)
    The paternity of a child established by one of the presumptions
    Based on marriage may be challenged in an action or proceeding
    By the husband or wife. The paternity may not be challenged by a person other than the husband or wife as long as the husband and wife are married and cohabiting, unless the husband and wife consent to the challenge.The presumption
    May be rebutted only by genetic test evidence, and only a court may order the tests;

    Several of the existing statutes that together govern judicial proceedings to establish paternity were amended to prevent courts from entering paternity findings when another man is already presumed to be the father or has been established as the father by a voluntary acknowledgment.
    These provisions 1) require that a petition to establish
    Paternity name the mother's husband if another man is alleged to be the child's father
    § 109.125(2)
    2) define a man whose paternity has been established
    Under ORS 109.070 as a necessary party to the proceedings
    Unless his paternity has previously been disestablished 2) define a man whose paternity has been established under ORS 109.070 as a necessary party to the proceedings
    Unless his paternity has previously been disestablished§109.125(5)
    And 3) preclude a court from entering a judgment establishing paternity in a filiation proceeding if another man's paternity has previously been established unless the judgment also disestablishes that paternity§ 109.155(7)
    While these provisions help to solve the problem of conflicting determinations of legal paternity, they do not completely solve the problem. No statute prevents a mother and alleged father from signing a voluntary acknowledgment of paternity when another man is presumed to be or has been established as the child's father§ 109.070(1)Thus, it continues
    To be possible for more than one man to be designated as a
    Child's legal parent as, for example, when a married woman files a voluntary acknowledgment of paternity with a man who is not her husbandId. § 432.287(2)./This scenario assumes that the mother did not put her husband's name on the birth certificate./

    Another hotly contested issue parallels one that arose regarding
    The marital presumption: whether a judge should have discretion to
    Reject a petition to set aside a judgment when genetic evidence shows
    That the legal father is not the biological father.As with the marital
    Presumption, the legislation gives judges discretion.
    Judicial Discretion to Deny Petitions to Set Aside Paternity
    As the discussion above explains, the new legislation takes the
    Same approach to resolving the dispute about whether biological paternity should give way to other factors in determining legal paternity,regardless of how legal paternity is established. Ordinarily, evidence about biological paternity is admissible, and biology is the starting point for determining legal paternity. However, at every critical point,the judge has discretion to enter an order that will preclude biological evidence from being determinative:
    ORS 109.070(1) – that a married woman's husband is rebuttably presumed to be the father of children born to her during the marriage.
    109.124 2) “Child born out of wedlock” means a child born to an unmarried woman or to a married woman by a man other than her husband.
    “Child born out of wedlock” means a child born to an unmarried woman, or to a married woman by a man other than her husband, if the conclusive presumption in ORS 109.070 (1)(a) does not apply



    I am not sure about Oregon but in Pennsylvania a mother is obligated to put her husband's name on her child's BC. If he did not put her husband's name, it is assumed that both she and her husband declare a sort of Denial of husband's paternity. It can be used for applying Res Judicata if a husband wants to avoid his obligations but it cannot stop a father to establish himself as a father of marital child.
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    #38

    Dec 16, 2008, 07:19 AM

    Thanks for spending the time on this. Its looking better for the OP from what you posted. Especially the point that the bio father needs to bring an action within 2 years of the birth.

    The one point that muddies the waters is the lack of the father's name on the because. But I think that is mitigated by the fact that the husband has raised the child as his own.
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    #39

    Dec 16, 2008, 07:28 AM

    Quote Originally Posted by ScottGem View Post
    Thanks for spending the time on this. Its looking better for the OP from what you posted. Especially the point that the bio father needs to bring an action within 2 years of the birth.
    No,it is about Ca.There is no time limit in Oregon

    Quote Originally Posted by ScottGem View Post
    The one point that muddies the waters is the lack of the father's name on the b/c. But I think that is mitigated by the fact that the husband has raised the child as his own.
    That's the main problem. The case can be viewed as a case "Biological father who wants rights and obligations versus step-father/husband/ who has never had intention to take legal responsibilities"
    Another point muddled the waters is the fact that the BF is allowed to visit his child.
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    #40

    Dec 16, 2008, 02:42 PM

    Here is the link that the OP has requested regarding 109.70 - 72

    Relating to paternity; amending ORS 109.070.

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