Family Law

When the State sues you for Paternity

f you have been sued to establish your paternity of a child, most such suits are brought by the State of Oregon because the mother and child are receiving welfare benefits. The State of Oregon wants to establish that you are the father of the child so it can ask that you be ordered to pay child support.

The purpose of this handout is to explain your rights and responsibilities in a paternity lawsuit, and as the father of minor child. It is also to explain what Lane County Legal Aid will do to assist you.

If you are found to be the father, you have certain rights. You have the right to visit the child on a regular basis. If satisfactory visitation cannot be worked out between you and the child's mother, you can ask the court to set a schedule. You have the right to have a close and natural father-child relationship with your child. You have the right to know about the child's school progress and to know about any medical care given to the child. You have the right to ask a court to give you custody of your child. To get custody you would need to show that you are willing and able to take on the responsibility, and that the child is not being properly cared for, or that you can provide a better home environment.

As the father of the child, you also have certain legal responsibilities. If the child does not live with you, you will be required to pay child support. You may be required to pay bills related to birth expenses, or to help pay medical or dental bills for the child in the future. Your responsibility to pay child support will continue until the child reaches the age of 18, or until the child is 21 if the child in college or vocational school. The amount of support will be set according to your ability to pay. If your financial situation gets worse, you can ask the court to decrease the support. If it gets better, the child's mother (or the State) can ask to increase it.

If a child is born during a marriage, and the husband and wife were living together when the child was conceived, the husband is automatically the legal father of the child and cannot dispute it. If a child is born during a marriage and the husband and wife were NOT living together, the husband is presumed to be the father, but he can try to prove he is not. For example, he can prove that he and his wife were separated and had no sexual relations during the conception period. He could also have DNA tests done to prove he is not the father.

How Paternity is Established: Unmarried Parents

1. The mother and father can sign a joint declaration of paternity on a special form which is then filed with Vital Statistics Unit of the State Health Division. A new birth certificate can then be issued for the child with the father's name on it. NOTE: Unless paternity has been legally established or the parents are married, there will be no father's name on the birth certificate.

2. In the alternative, a paternity lawsuit can be filed to establish paternity in a court proceeding. The mother, the father, or the State (if the child receives public benefits) can file this suit.

1. You may receive a letter from the Support Enforcement Division (SED) asking you to come in for a conference about paternity. You do not have to go to the conference. If you do go, anything you tell them may later be used to prove you paternity. You do not have to sign any papers. If you have questions, see a lawyer before signing anything or before talking to anyone.

2. You may be served with papers called a "Notice and Finding of Financial Responsibility." They would ask that you be declared the father of the child and ordered to pay child support and birth expenses.

• If your paternity is already established, you must act within twenty days or the child support will automatically be entered.
• If the paternity is an issue, you must act within thirty days or you will automatically be declared the father.
• SEE A LAWYER AS SOON AS YOU RECEIVE ANY PAPERS LIKE THIS!
• (See the section below about court papers for more information.)

3. You may be served with court papers called a Summons and Complaint (or Petition). The Complaint (or Petition) will ask that you be declared the father of the child and ordered to pay child support, birth expenses and attorney fees. The Summons tells you that you have thirty days to file a paper (called an Answer or Response) with the court to fight the paternity suit.

• SEE A LAWYER AS SOON AS YOU RECEIVE ANY COURT PAPERS! You should see a lawyer to learn your rights and to decide if you want to admit or deny paternity. If you acknowledge paternity, think about how much child support you could afford to pay. If you agree to paternity, the other side will often agree to drop its request for attorney fees, back child support, and/or birth costs.
• If you file court papers, you will have to pay a filing fee or ask the court to defer the fee.
• If you don't file any court papers within the 30 days, you will automatically be declared the father and ordered to pay the amount of child support requested in the Complaint.
• If you file and Answer or Response with the Court denying paternity, the case will then be set for trial. You have the right to a jury trial but you are not required to have one. You can have a lawyer represent you and have witnesses testify for you at the trial. The trial probably will not be scheduled for several months.
• While waiting for the trial, you or your lawyer can investigate the case to find out what evidence the other side will use to prove you are the father of the child. Examples of evidence which could be used to prove you are the father include: statements you have made to anyone about being the father; money or gifts given to the mother or to the child; whether you were living with or dating the mother around the time of conception; whether you offered to pay for an abortion; whether you admit to having sexual relations with the mother; and DNA tests.

The best way to prove you are not the father of a child or to find out for sure if you are, is to have group DNA tests done. You, the mother, and the child will have to go to a medical laboratory and have DNA samples taken. DNA sampling is done by drawing blood samples from the mother, child, and the alleged father, or by collecting cells from inside the cheeks of the mother, child, and the alleged father by rubbing a swab on the inside of the mouth (called the "buccal swab" method). The DNA samples are sent to a laboratory which reports its conclusions to the State, the mother (or her attorney), and to you (or your attorney). DNA testing is very accurate. It can completely exclude you as a father, or it can state a percentage of probability that you are the father. For example, the test might state that it is 96% probable that you are the father. While this is not an absolute certainty, it is a very, very high probability, and you would likely be declared the father.

DNA tests are expensive and costs about $600 for a private party to obtain. DNA testing initiated by the State of Oregon is somewhat less expensive due to the high volume of business it does with the testing laboratory.

At the present time, if the State is suing you, it will advance the money for the DNA tests. Once the results are known, there are several possibilities:

1. If the DNA tests exclude you from being the child's father, the State will dismiss the case.

2. If the DNA tests include you as a possible father, a probability percentage of at least 98% will likely be obtained. A probability percentage of 95% or more is almost conclusive proof of your paternity. Although you could still have a trial, there would be little point unless you could hire a statistics expert to be a witness, and even then you would probably lose.

3. If the State wins the case, they will get a court judgment against you for the cost of the DNA test, along with a possible judgment for birth costs and attorney fees. You will also be required to pay monthly child support.

4. If you win the case (or if it is dismissed), you don't have to pay the State for any of these costs.

This is a formal interview to let the other side's lawyer ask you questions about why you think you aren't the father. You must answer the questions under oath. It is not a trial, but it is used to help prepare for trail. Also, your lawyer can take the deposition of the mother, or of her witnesses, to find out what they are going to say to prove that you are the father. If your lawyer takes any depositions of the other side, you may be expected to pay the cost. The usual cost of a deposition is in a range of $50 to $100, depending on how long it takes.

The other side may have witnesses, such as the mother's parents or friends. These witnesses may know about your relationship with the mother, or that you gave gifts to the child, or that you acknowledged having sexual relations with the mother.

You may have witnesses your lawyer can contact who know that the mother had sexual relations with another man at the conception time, or who have heard the mother say that you are not the father.

Warning: Some men think they can win a paternity suit by bringing in other men to swear they had sex with the mother. This does not work. First of all, evidence of other sexual activity by the mother must be within a week of the probable conception date to be allowed in court. Also you may know someone who had sexual relations with the mother (or said that he did) but he probably won't say so under oath for fear that the State will try to probe that he is the father instead of you, or because it really wasn't true. Also, your lawyer will not help you in having other men testify that they had sexual relations with the mother when in fact they did not, just to help you win. 

Because of our limited resources and staff, we will not be able to help you other than to provide advice. In cases filed by the State, the State will advance the costs of the blood tests. Because the tests are very accurate and will almost always resolve the paternity question, we urge you to cooperate and take the tests. If you do not agree to take the tests, the State can ask the court to order you to take them. If you still do not take them you can be punished by a fine, jail, or having the case automatically decided against you.

Because of limited resources, Legal Aid does not handle every custody or visitation case. If your case meets our guidelines on these issues we may agree to help you claim custody or establish a visitation schedule.

If you are not eligible for Legal Aid, you can either represent yourself, or you can see a private attorney to represent you. A private attorney will charge for representing you, usually on an hourly basis.

If you represent yourself, you must still take the proper action within the deadlines or you will lose automatically. After that, you should call the State's lawyer and arrange to have blood tests done. The State will advance the costs, subject to your repaying them if you lose the case, as previously described. Since the cost of the blood tests is small compared to many years of paying child support, we urge you to cooperate.

You can talk this over with the Support Enforcement Division attorney. However, if you plan to deny paternity, do not say anything to the SED attorney about the facts of the case. That is, don't say anything about whether you had sexual relations with the mother, or whether you think you are the father. If you do, they will use that against you in court. Just talk to the SED attorney about arranging the blood tests.

If you do not have an attorney, be sure you keep the court and the SED attorney notified of your address and phone number at all times. If you fail to do this, they cannot contact you to let you know what is going on.

You have the right to represent yourself at any deposition or at the trial. However, since this can involve many technical legal matters, we highly recommend that you hire an attorney to help if you plan to go to trial.

Oregon Revised Statutes(ORS) 109.070; 109.094; 109.112; 109.124-109.235; 109.250-262; and 416.400-416.070. The statutes referred to can be found in the law library at the Lane County Courthouse or at your local library. Paternity.1.wpd (6/00)

Click here to view Oregon Revised Statutes online.
 

THIS PAMPHLET IS A GENERAL STATEMENT OF LAW AND PROCEDURE AND NOT ASUBSTITUTE FOR SPECIFIC LEGAL ADVICE.  IT MAY GIVE YOU SOME IDEA OF YOUR RIGHTS, BUT THE LAW IS ALWAYS CHANGING THROUGH ACTIONS OF THE COURTS AND LEGISLATURE.                So when a problem arises . . . SEE A LAWYER! Don't know a lawyer?  Contact the OREGON STATE BAR REFERRAL SERVICE (Toll Free Number: 1-800-452-7636).  Can't afford a lawyer?  If you live in Lane County, contact Lane County Legal Aid and Advocacy Center, 376 East 11th Avenue, Eugene, Oregon 97401 (541-485-1017).  In other Oregon counties, check the telephone yellow pages under the heading "attorneys" for the Legal Aid or Legal Services office closest to your city. We do not accept applications by e-mail.  For assistance, please contact our office in person or by phone.

Back to the Top of the Page