Or. Admin. R. 137-055-3080 - Responsibility of Administrator to Establish Paternity at Request of Self-Alleged Father

Current through Register Vol. 61, No. 4, April 1, 2022

(1) For purposes of this rule, self-alleged father means a man who both:
(a) Claims that he is, or possibly is, the biological father of a child born out of wedlock as defined in ORS 109.124; and
(b) Wishes to have paternity legally established for the child, establishing himself as the legal father.
(2) The administrator is responsible for pursuing establishment of paternity at the request of a self-alleged father, subject to all of the following:
(a) The self-alleged father must either:
(A) Be eligible for services under ORS 25.080, because he is receiving TANF cash assistance or Medicaid assistance for the child born out of wedlock; or
(B) Complete an application for services as provided under ORS 25.080.
(b) Unless otherwise prohibited under this rule, the administrator will:
(A) Take all appropriate steps to determine if the self-alleged father is the biological father; and
(B) Pursue appropriate action to legally establish paternity unless evidence indicates that he is not the biological father.
(c) The administrator will not pursue action to establish paternity under this section in any case where:
(A) Adoption of the child is final; or
(B) Legal parentage for a person in addition to the birth mother already exists for the child, or;
(C) The administrator has determined that establishing paternity for the self-alleged father would not be in the best interests of the child, in accordance with section (4) of this rule.
(3)
(a) When a self-alleged father requests the administrator establish his legal paternity for a child, the administrator will send written notification by first class mail to the last known address of the mother and, if a separate party, caretaker or legal guardian of the child. Further, if the administrator knows or is informed that legal proceedings for adoption of the child are pending, the administrator will also send written notification to the licensed private agency handling the adoption, or if none exists, to the Department of Human Services;
(b) The administrator will make a thorough attempt to locate any party entitled to notice under this section, including but not limited to submitting the case to the Division of Child Support for state parent locator services. If unable to locate a party entitled to notice under this section within 30 days, the administrator will proceed to process the case as described in section (7) of this rule without the notice described in this section;
(c) The written notification must state the following:
(A) That the self-alleged father has asked the administrator for establishment of paternity services;
(B) That if legal proceedings for adoption of the child are pending, or if it is alleged that the child was conceived due to rape or incest, the Oregon Child Support Program director will determine whether establishing paternity is in the best interests of the child;
(C) That a copy of any response to the notification will be sent to the self-alleged father, and that the self-alleged father will then have an opportunity to respond to the allegations. The administrator will ensure that the address of the mother or guardian is redacted from any written material sent to the self-alleged father;
(D) The factors the Program director will consider, set out in section (4) of this rule, in determining whether establishing paternity would be in the best interest of the child;
(E) That the mother, legal guardian, and adoption agency or the Department of Human Services child welfare program, if appropriate under this rule, has 15 days to respond in writing to the written notification;
(F) That the self-alleged father has 15 days to respond to an allegation or response received by the Program director;
(G) That if any of the parties listed in paragraph (E) or (F) of this subsection does not respond to the written notice or allegation within 15 days, the Program director will make a determination based on the responses received;
(H) That if the Program director determines that establishing paternity would not be in the best interests of the child, this decision:
(i) Means only that the administrator will not pursue action to establish paternity; and
(ii) Does not preclude the self-alleged father from pursuing establishment of paternity on his own, without the assistance of the administrator.
(4) In any case where legal proceedings for adoption of the child are pending, or where the child was conceived due to alleged rape or incest, the Program director is responsible for determining whether action to establish paternity would be in the best interests of the child.
(a) If the Program director determines that action to establish paternity would not be in the best interests of the child, the administrator will take no further action to establish paternity for the self- alleged father;
(b) A signed written statement from the mother or legal guardian of the child, stating that the child was conceived as a result of rape or incest, is sufficient reason for the Program director to determine that establishing paternity would not be in the best interests of the child, unless such statement is disputed or denied by the self-alleged father, subject to the following:
(A) If the self-alleged father does not respond to the copy of the allegation or response the Program director receives as provided in subsections (3)(a) through (3)(c) of this rule, the Program director will make a determination by default based on the mother's or legal guardian's statement;
(B) If the self-alleged father does respond and acknowledges that the child was conceived by rape or incest, the Program director must determine that establishing paternity would not be in the best interests of the child;
(C) If the self-alleged father does respond and denies that the child was conceived by rape or incest, the Program director will decide whether to pursue action to establish paternity. The Program director will consider factors including, but not limited to:
(i) Whether a police report was filed;
(ii) Whether the self-alleged father was convicted or acquitted of rape or incest charges;
(iii) Whether other persons have information that the child was conceived due to rape or incest;
(iv) Any other factors known or provided to the Program director that would support or refute the veracity of the rape or incest allegation;
(v) Whether establishing paternity would be in the best interest of the child, considering the factors listed in subsection (c) of this section;
(vi) The Program director's decision in this matter is limited to only whether the administrator will pursue action to establish paternity, and is in no way to be construed or intended as a determination or accusation of whether the self-alleged father is in fact guilty or not guilty of rape or incest;
(c) When the Program director finds that legal proceedings for adoption of the child are pending, the Program director will consider the following factors in determining whether establishing paternity would be in the best interests of the child:
(A) The nature of the relationship or contacts between the child and the self-alleged father. This determination may consider whether the child has lived with the self-alleged father or has had frequent visitation with the self-alleged father, thereby establishing a substantial parent-child relationship;
(B) The degree of parental commitment by the self-alleged father to the child. This determination may consider whether the self-alleged father has attempted to stay in contact with the child, and if such attempts would continue or increase in the future;
(C) The degree to which the self-alleged father has contributed or attempted to contribute, consistent with his ability, to the support of the child. This determination may consider the nature and extent of such support, and if such support would continue or increase in the future;
(D) If there is a legal relationship between the child and the self-alleged father, or if there has been an attempt to establish such a legal relationship through filiation proceedings, custody actions, voluntary acknowledgment of paternity, or similar actions. This determination may consider whether the self-alleged father has had an opportunity to establish a legal relationship prior to the initiation of adoption proceedings;
(E) Whether good reasons exist that would excuse the self-alleged father's failure to establish a relationship, or stay in contact with the child, or contribute to the support of the child, or attempt to establish a legal relationship with the child. Such reasons may include, but are not limited to, the self-alleged father's late awareness of the mother's pregnancy or of the child's birth.
(5) Absent judicial review, the decision of the Program director is final with regard to any responsibility of the administrator to pursue establishment of paternity.
(6) No provision of this rule prohibits the self-alleged father from pursuing establishing paternity on his own, without the assistance of the administrator.
(7) If the Program director determines (when a determination by the Program director is necessary under this rule) that the administrator may pursue action to establish paternity at the request of a self-alleged father, or if the administrator does not receive a written assertion requiring such a determination by the Program director under this rule, the administrator will proceed on the case as follows:
(a) The administrator must provide the mother of the child, unless she is deceased, actual notice of the action to establish paternity. Notice must be by personal service upon the mother. If personal service is not successful, the administrator shall request permission from the circuit court to serve the mother by an alternate method as provided in ORCP 7 D(6);
(b) If the mother of the child or children cannot be personally served with notice of the action or if the mother is deceased, the enforcing agency will not take an order establishing paternity unless genetic tests to determine paternity have been completed which fail to exclude the self-alleged father, and have a cumulative paternity index of at least 99;
(c) In any action to establish paternity in which the administrator cannot personally serve the child's mother, or when the mother is deceased, the administrator will request that the court appoint a willing, qualified, and suitable person to be a guardian ad litem for the child. If no relative or other person agrees to such appointment, the administrator will request that an attorney be appointed for this purpose.
(8) All other provisions of this rule notwithstanding, the administrator cannot require the child's mother (or other custodial adult) to cooperate with efforts to establish paternity, and the administrator will not assess a penalty for not cooperating, in any case where a finding of good cause pursuant to federal law at 42 U.S.C. 654(29) and 42 U.S.C.666(a)(5)(B)(i), is either currently in effect or is pending. In any such case, the administrator need not proceed further on behalf of the self-alleged father if it determines that there is no further effective action the administrator can take on behalf of the self-alleged father.

Notes

Or. Admin. R. 137-055-3080
AFS 23-1993, f. & cert. ef. 10-19-93; AFS 3-1994, f. & cert. ef. 2-1-94; AFS 12-1996, f. & cert. ef. 4-1-96; AFS 9-1998, f. 5-29-98, cert. ef. 6-1-98; AFS 32-2000, f. 11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-0068; AFS 4-2001, f. 3-28-01, cert. ef. 4-1-01; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru 12-28-03, Renumbered from 461-200-3080; DOJ 10-2003, f. 9-29-03, cert. ef. 10-1-03, Renumbered from 461-200-3080; DOJ 1-2008(Temp), f. & cert. ef. 1-2-08 thru 3-31-08; DOJ 6-2008, f. & cert. ef. 4-1-08; DOJ 3-2009, f. & cert. ef. 4-1-09; DOJ 1-2010, f. & cert. ef. 1-4-10; DOJ 4-2017(Temp), f. & cert. ef. 6-14-17 thru 12-10-17; DOJ 13-2017, amend filed 12/29/2017, effective 1/1/2018; DOJ 4-2021, amend filed 01/28/2021, effective 2/1/2021

Statutory/Other Authority: ORS 180.345

Statutes/Other Implemented: ORS 25.080, 25.550, 109.070 & 109.125

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