Paternity Suit After 10 years

[colleen99]

I had a child 10 years ago. My husband and I got married after he was born. My husband is listed as the child's father on the birth certificate. We have been married for almost 10 years. Now an old boyfriend has contacted me and threatened a paternity suit. Can he do this after 10 years? I have heard from him maybe 5 times over this time with similar threats. I think he may be serious this time. He contacts me about every two years. I live in Oregon and so does he. Any input would be appreciated. I hate for my son to have to go through anything traumatic like this. THanks.

[Neal1421]

What state are you in?

Should he have reason to believe that your son is in fact his child?

[aaron]

Also, if you know, why didn't he figure this out and act a lot sooner?

[colleen99]

Yeah, my husband and he knew it was a possibility. It just seems after a kid has been raised for 10 years with someone who has been his father in every way that really matters, this man should not be able to challenge it. I would not be so upset if he had done this when my son was younger, but he is almost 11. This will turn his world upside down. I know some states have statue of limitations on when a father can deny paternity, but what about the other way when they want to be the father?

[moburkes]

How did your husband's name get on the BC?

[aaron]

Oregon's statutes provide,

(1) The paternity of a person may be established as follows:

(a) A child born in wedlock, there being no judgment of separation from bed or board, is presumed to be the child of the mother’s husband, whether or not the marriage of the husband and wife may be void. This is a disputable presumption.

(b) By the marriage of the parents of a child after birth of the child.

(c) By filiation proceedings.

(d) By filing with the State Registrar of the Center for Health Statistics the voluntary acknowledgment of paternity form as provided for by ORS 432.287. Except as otherwise provided in subsections (2) to (4) of this section, this filing establishes paternity for all purposes.

(e) By having established paternity through a voluntary acknowledgment of paternity process in another state.

(f) By paternity being established or declared by other provision of law.

(2) A party to a voluntary acknowledgment of paternity may rescind the acknowledgment within the earlier of:

(a) Sixty days after filing the acknowledgment; or

(b) The date of a proceeding relating to the child, including a proceeding to establish a support order, in which the party wishing to rescind the acknowledgment is also a party. For the purposes of this paragraph, the date of a proceeding is the date on which an order is entered in the proceeding.

(3)

(a) A signed voluntary acknowledgment of paternity filed in this state may be challenged in circuit court:

(A) After the 60-day period in a proceeding under section 9, chapter 160, Oregon Laws 2005.

(B) At any time after the 60-day period on the basis of fraud, duress or a material mistake of fact by:

(i) A party to the acknowledgment;

(ii) The child named in the acknowledgment; or

(iii) The Department of Human Services or the administrator, as defined in ORS 25.010, if the child named in the acknowledgment is in the care and custody of the department under ORS chapter 419B and the department or the administrator reasonably believes that the acknowledgment was obtained through fraud, duress or a material mistake of fact.

(C) Within one year after the acknowledgment has been filed. Subsection (4) of this section applies to a challenge under this subparagraph. A challenge to the acknowledgment is not allowed more than one year after the acknowledgment has been filed, unless the provisions of subparagraph (A) or (B) of this paragraph apply.

(b) Legal responsibilities arising from the acknowledgment, including child support obligations, may not be suspended during the challenge, except for good cause.

(c) The party challenging an acknowledgment under this subsection has the burden of proof.

(4)

(a) Within one year after a voluntary acknowledgment of paternity form is filed in this state, a party to the acknowledgment, the child named in the acknowledgment or the state, if child support enforcement services are being provided under ORS 25.080, may apply to the court or to the administrator, as defined in ORS 25.010, for an order requiring that the mother, the child and the male party submit to blood tests as provided in ORS 109.250 to 109.262.

(b) If the results of the tests performed under paragraph (a) of this subsection exclude the male party as a possible father of the child, or if the court determines under subsection (3) of this section that the male party is not the father of the child, a party to the challenge may apply to the court for a judgment of nonpaternity. The party that applied for the judgment shall send a certified true copy of the judgment to the State Registrar of the Center for Health Statistics and to the Department of Justice as the state disbursement unit. Upon receipt of a judgment of nonpaternity, the state registrar shall correct any records maintained by the state registrar that indicate that the male party is the parent of the child.

(c) Child support payments made before entry of a judgment of nonpaternity may not be returned to the payer.

That statute has been significantly revised, with the new language to take effect as of Jan 2, 2008. The most pertinent part:

(3)(a) A signed voluntary acknowledgment of paternity filed in this state may be challenged in circuit court:

(A) At any time after the 60-day period on the basis of fraud, duress or a material mistake of fact. The party bringing the challenge has the burden of proof.

(B) Within one year after the acknowledgment has been filed, unless the provisions of subsection (4)(a) of this section apply. A challenge to the acknowledgment is not allowed more than one year after the acknowledgment has been filed, unless the provisions of subparagraph (A) of this paragraph apply.

(b) Legal responsibilities arising from the acknowledgment, including child support obligations, may not be suspended during the challenge, except for good cause.

[colleen99]

Most of the laws seem to be if the father on the legal papers wants to challenge it, but what about a third party trying to challenge it. My husband will not be challenging anything.

[colleen99]

Also, thanks for the info.

[aaron]

The new statute does not appear to limit challenges to a party to the affidavit. I am not certain about the old (current) law, but a family lawyer in your state should be able to let you know.