ORS § 109.326

Current through 2024 Regular Session legislation effective June 6, 2024

Section 109.326 - Consent when spouse not parent

(1) If the mother of a child was married at the time of the conception or birth of the child, and it has been determined pursuant to ORS 109.065 or 419B.609 or judicially determined that the mother's spouse at such time or times was not the parent of the child, the spouse's authorization or waiver is not required in adoption, juvenile court or other proceedings concerning the custody of the child.

(2)

(a) If parentage of the child has not been determined, a determination of nonparentage may be made by any court having adoption, divorce or juvenile court jurisdiction.

(b) Except as provided in subsection (11) of this section, the testimony or affidavit of the mother or the spouse or another person with knowledge of the facts filed in the proceeding constitutes competent evidence before the court making the determination.

(c) The provisions of this section relating to Indian children do not apply if the determination of nonparentage is being made by a court having divorce jurisdiction or jurisdiction to decide custody between unmarried parents.

(3) Before the court may make the determination of nonparentage, the petitioner shall:

(a) Conduct the inquiry described in ORS 419B.636 (2) to determine whether the petitioner has reason to know that the child is an Indian child; and

(b) Serve on the spouse a summons and a true copy of a motion and order to show cause why a judgment of nonparentage should not be entered if:

(A) There has been a determination by any court of competent jurisdiction that the spouse is the parent of the child;

(B) The child resided with the spouse at any time since the child's birth;

(C) The spouse repeatedly has contributed or tried to contribute to the support of the child; or

(D) The petitioner has reason to know that the child is an Indian child.

(4) When the petitioner is required to serve the spouse with a summons and a motion and order to show cause under subsection (3) of this section:

(a) Service must be made in the manner provided in ORCP 7 D and E, except as provided in subsection (7) of this section. Service of the summons and the motion and order to show cause must be proved as required in ORCP 7 F. The summons and the motion and order to show cause need not contain the names of the adoptive parents.

(b) If the petitioner has reason to know that the child is an Indian child, the petitioner shall serve copies of the motion, together with the notice of proceeding required under ORS 419B.639 (3), on:

(A) Each tribe of which the child may be a member or in which the Indian child may be eligible for membership;

(B) The child's parents;

(C) The child's Indian custodian, if applicable; and

(D) The appropriate United States Bureau of Indian Affairs Regional Director listed in 25 C.F.R. 23.11(b), if the identity or location of the child's parents, Indian custodian or tribe cannot be ascertained.

(c) The petitioner shall file a declaration of compliance under penalty of perjury made in the manner described by ORCP 1 E, that includes:

(A) A statement and documentation, as described by the Department of Human Services by rule, of the efforts described in ORS 419B.636 (2) that the petitioner made to determine whether there is reason to know that the child is an Indian child; and

(B) If the petitioner has reason to know that the child is an Indian child:

(i) A statement describing the efforts the petitioner made, as required under ORS 109.302 (2)(c), to prevent the break up of the family or to reunite the family; and

(ii) A copy of each notice of proceeding the petitioner served as required under paragraph (b) of this subsection, together with any return receipts or other proof of service.

(5) The inquiry required under subsection (3)(a) of this section and notice required under subsection (4)(a) of this section may be combined with the inquiry and notice required under ORS 109.285 or 109.385 if the motion and order to show cause is filed concurrently with the petition for adoption or readoption under ORS 109.285 or 109.385.

(6) A summons under subsection (3) of this section must contain:

(a) A statement that if the spouse fails to file a written answer to the motion and order to show cause within the time provided, the court, without further notice and in the spouse's absence, may take any action that is authorized by law, including but not limited to entering a judgment of nonparentage on the date the answer is required or on a future date.

(b) A statement that:

(A) The spouse must file with the court a written answer to the motion and order to show cause within 30 days after the date on which the spouse is served with the summons or, if service of the summons is made by publication or posting under ORCP 7 D(6), within 30 days from the date of last publication or posting.

(B) In the answer, the spouse must inform the court and the petitioner of the spouse's telephone number or contact telephone number and the spouse's current residence, mailing or contact address in the same state as the spouse's home. The answer may be in substantially the following form:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF _________

_________,)

Petitioner,) NO._____

)

) ANSWER

and)

)

_________,)

Respondent.)

[ ] I consent to the entry of a judgment of nonparentage.

[ ] I do not consent to the entry of a judgment of nonparentage. The court should not enter a judgment of nonparentage for the following reasons:

______________________________________________________________________________

_________________________

__________________

Signature

DATE:_____________________

ADDRESS OR CONTACT ADDRESS:

_____________________

TELEPHONE OR CONTACT TELEPHONE:

_____________________

______________________________________________________________________________

(c) A notice that, if the spouse answers the motion and order to show cause, the court:

(A) Will schedule a hearing to address the motion and order to show cause and, if appropriate, the adoption petition;

(B) Will order the spouse to appear personally; and

(C) May schedule other hearings related to the petition and may order the spouse to appear personally.

(d) A notice that the spouse has the right to be represented by an attorney. The notice must be in substantially the following form:

______________________________________________________________________________

You have a right to be represented by an attorney. If you wish to be represented by an attorney, please retain one as soon as possible to represent you in this proceeding. If you meet the state's financial guidelines, you are entitled to have an attorney appointed for you at state expense. To request appointment of an attorney to represent you at state expense, you must contact the circuit court immediately. Phone ______ for further information.

______________________________________________________________________________

(e) A statement that the spouse has the responsibility to maintain contact with the spouse's attorney and to keep the attorney advised of the spouse's whereabouts.

(7) A spouse who is served with a summons and a motion and order to show cause under this section shall file with the court a written answer to the motion and order to show cause within 30 days after the date on which the spouse is served with the summons or, if service is made by publication or posting under ORCP 7 D(6), within 30 days from the date of last publication or posting. In the answer, the spouse shall inform the court and the petitioner of the spouse's telephone number or contact telephone number and current address, as defined in ORS 25.011. The answer may be in substantially the form described in subsection (6) of this section.

(8) If the spouse requests the assistance of appointed counsel and the court determines that the spouse is financially eligible, the court shall appoint an attorney to represent the spouse at state expense. Appointment of counsel under this subsection is subject to ORS 135.055, 151.216 and 151.219. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines adopted under ORS 151.216.

(9) If the spouse files an answer as required under subsection (7) of this section, the court, by oral order made on the record or by written order provided to the spouse in person or mailed to the spouse at the address provided by the spouse, shall:

(a) Inform the spouse of the time, place and purpose of the next hearing or hearings related to the motion and order to show cause or the adoption petition;

(b) Require the spouse to appear personally at the next hearing or hearings related to the motion and order to show cause or the adoption petition; and

(c) Inform the spouse that, if the spouse fails to appear as ordered for any hearing related to the motion and order to show cause or the adoption petition, the court, without further notice and in the spouse's absence, may take any action that is authorized by law, including but not limited to entering a judgment of nonparentage on the date specified in the order or on a future date, without the consent of the spouse.

(10)

(a) Upon receiving the petitioner's declaration of compliance under subsection (4)(c) of this section, the court shall review the petitioner's statements and documentation and order that the adoption may proceed if the court finds that the petitioner satisfied the inquiry requirements under ORS 419B.636 (2) and, if applicable, the notice requirements under ORS 419B.639 (2).

(b) If the court finds that the petitioner failed to satisfy the inquiry or, if applicable, notice requirements under ORS 419B.636 (2) and 419B.639 (2), or if the documentation is insufficient for the court to make those findings, the court shall direct the petitioner to cure the inquiry or notice deficiency and file an amended declaration of compliance. The court shall order the petitioner to appear and show cause why the court should not deny the motion and order to show cause if the petitioner fails to file the amended declaration of compliance within a reasonable amount of time.

(11)

(a) If a spouse fails to file a written answer as required in subsection (7) of this section or fails to appear for a hearing related to the motion and order to show cause or the petition as directed by court order under this section, the court, without further notice to the spouse and in the spouse's absence, may take any action that is authorized by law, including but not limited to entering a judgment of nonparentage.

(b) Notwithstanding paragraph (a) of this subsection, the court may not enter a judgment of nonparentage unless the court finds that the petitioner complied with the inquiry requirements under ORS 419B.636 (2).

(12) If the child is an Indian child:

(a) The court may not enter a judgment of nonparentage with the consent of the spouse unless:

(A) The consent clearly sets out the conditions to the consent, if any;

(B) Prior to the execution of the consent, the court explains to the spouse, on the record in detail and in the language of the spouse, the spouse's right to legal counsel, the terms and consequences of the consent and that the spouse may withdraw the consent at any time prior to the entry of a judgment of adoption or readoption under ORS 109.350;

(C) The spouse executes the consent in person before the court not less than 10 days following the date of the Indian child's birth; and

(D) After the spouse executes the consent, the court certifies that the court provided the explanation in the manner required under subparagraph (B) of this paragraph and that the spouse fully understood the explanation.

(b) Notwithstanding subsection (9) or (11) of this section, the court may not enter a judgment of nonparentage without the consent of the spouse unless:

(A) The court has offered to order mediation through the Department of Human Services, or, if there is mutual party agreement to private mediation and to the party assumption of costs, through other mediation services, between the petitioner, spouse, Indian child's tribe and, if applicable, the proposed adoptive placement;

(B) If requested by the tribe, an agreement is in place that requires the petitioner or, if applicable, the proposed adoptive placement to maintain connection between the Indian child and the Indian child's tribe; and

(C) The court finds that:

(i) The petitioner complied with the notice requirements as required under ORS 419B.639 (2);

(ii) Despite petitioner's active efforts, evidence, including the testimony of one or more qualified expert witnesses under ORS 419B.642, establishes beyond a reasonable doubt that the continued custody of the Indian child by the spouse is likely to result in serious emotional or physical damage to the Indian child and that the petitioner's active efforts under ORS 419B.645 to reunite the Indian family did not eliminate the necessity for termination of the spouse's parental rights based on serious emotional or physical damage to the Indian child; and

(iii) That the adoptive placement complies with the placement preferences under ORS 419B.654 (2) or, if not, a finding upon the petitioner's motion under ORS 419B.654 (3) that good cause exists for placement contrary to the placement preferences in ORS 419B.654 (2).

(c) The evidence under paragraph (b)(C)(ii) of this subsection must show a causal relationship between the particular conditions in the Indian child's home and the likelihood that the spouse's continued custody will result in serious emotional or physical damage to the Indian child who is the subject of the adoption proceeding. Evidence that shows the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse or nonconforming social behavior does not, by itself, establish a causal relationship as required by this paragraph.

(13) There shall be sufficient proof to enable the court to grant the relief sought without notice to the spouse if:

(a) The affidavit of the mother of the child, of the spouse or of another person with knowledge of the facts filed in the proceeding states or the court finds from other competent evidence:

(A) That the mother of the child was not cohabiting with the mother's spouse at the time of conception of the child and that the spouse is not the parent of the child;

(B) That the spouse has not been judicially determined to be the parent of the child;

(C) That the child has not resided with the spouse; and

(D) That the spouse has not contributed or tried to contribute to the support of the child; and

(b) The court finds by clear and convincing evidence, after due diligence on the part of the petitioner, that the child is not an Indian child.

(14) Notwithstanding ORS 109.070 (1)(a), service of a summons and a motion and order to show cause on the spouse under subsection (3) of this section is not required and the spouse's consent, authorization or waiver is not required in adoption proceedings concerning the child unless the child is an Indian child or the spouse has met the requirements of subsection (3)(b)(A), (B) or (C) of this section.

(15) A spouse who was not cohabiting with the mother at the time of the child's conception has the primary responsibility to protect the spouse's rights.

(16) Nothing in this section shall be used to set aside an act of a permanent nature, including but not limited to adoption, unless the parent establishes, within one year or, if the child is an Indian child, four years after the entry of the order or general judgment, as defined in ORS 18.005, fraud on the part of the petitioner with respect to the matters specified in subsection (13)(a) of this section.

(17) If the child is an Indian child, the child's tribe or Indian custodian may intervene at any time as a matter of right.

ORS 109.326

Amended by 2021 Ch. 398, § 26, eff. 9/25/2021, op. 1/2/2022.

Amended by 2017 Ch. 651, § 33, eff. 1/1/2018.

1957 c.710 §8 ( 109.312 to 109.329 enacted in lieu of 109.320); 1959 c.609 §1; 1967 c.385 §1; 1969 c.591 §287; 1975 c.640 §16; 1989 c.907 §1; 1995 c.514 §19; 2003 c. 576, § 148; 2005 c. 160, §§ 16, 22; 2005 c. 369, § 7; 2007 c. 454, § 6