Bill Text: OR SB735 | 2011 | Regular Session | Introduced
Bill Title: Relating to child support.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB735 Detail]
Download: Oregon-2011-SB735-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3681
Senate Bill 735
Sponsored by Senator HASS
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Deletes provisions that allow court to order support for child
18 years of age or older and under 21 years of age if child is
attending school. Voids that part of any existing judgment or
order that requires payment of support for child attending
school.
A BILL FOR AN ACT
Relating to child support; creating new provisions; amending ORS
25.080, 25.164, 107.105, 107.135, 107.485, 108.045, 108.110,
109.072, 109.124, 109.155, 109.165, 416.400, 416.415, 419B.400
and 419C.590; and repealing ORS 107.108.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + ORS 107.108 is repealed. + }
SECTION 2. ORS 107.105 is amended to read:
107.105. (1) Whenever the court renders a judgment of marital
annulment, dissolution or separation, the court may provide in
the judgment:
(a) For the future care and custody, by one party or jointly,
of all minor children of the parties born, adopted or conceived
during the marriage and for minor children born to the parties
prior to the marriage, as the court may deem just and proper
under ORS 107.137. The court may hold a hearing to decide the
custody issue prior to any other issues. When appropriate, the
court shall recognize the value of close contact with both
parents and encourage joint parental custody and joint
responsibility for the welfare of the children.
(b) For parenting time rights of the parent not having custody
of such children and for visitation rights pursuant to a petition
filed under ORS 109.119. When a parenting plan has been developed
as required by ORS 107.102, the court shall review the parenting
plan and, if approved, incorporate the parenting plan into the
court's final order. When incorporated into a final order, the
parenting plan is determinative of parenting time rights. If the
parents have been unable to develop a parenting plan or if either
of the parents requests the court to develop a detailed parenting
plan, the court shall develop the parenting plan in the best
interest of the child, ensuring the noncustodial parent
sufficient access to the child to provide for appropriate quality
parenting time and ensuring the safety of the parties, if
implicated. The court may deny parenting time to the noncustodial
parent under this subsection only if the court finds that
parenting time would endanger the health or safety of the child.
The court shall recognize the value of close contact with both
parents and encourage, when practicable, joint responsibility for
the welfare of such children and extensive contact between the
minor children of the divided marriage and the parties. If the
court awards parenting time to a noncustodial parent who has
committed abuse, the court shall make adequate provision for the
safety of the child and the other parent in accordance with the
provisions of ORS 107.718 (6).
(c) For the support of the children of the marriage by the
parties. In ordering child support, the formula established under
ORS 25.275 shall apply. The court may at any time require an
accounting from the custodial parent with reference to the use of
the money received as child support. The court is not required to
order support for any minor child who has become self-supporting,
emancipated or married { - or who has ceased to attend school
after becoming 18 years of age - } .
(d) For spousal support, an amount of money for a period of
time as may be just and equitable for one party to contribute to
the other, in gross or in installments or both. The court may
approve an agreement for the entry of an order for the support of
a party. In making the spousal support order, the court shall
designate one or more categories of spousal support and shall
make findings of the relevant factors in the decision. The court
may order:
(A) Transitional spousal support as needed for a party to
attain education and training necessary to allow the party to
prepare for reentry into the job market or for advancement
therein. The factors to be considered by the court in awarding
transitional spousal support include but are not limited to:
(i) The duration of the marriage;
(ii) A party's training and employment skills;
(iii) A party's work experience;
(iv) The financial needs and resources of each party;
(v) The tax consequences to each party;
(vi) A party's custodial and child support responsibilities;
and
(vii) Any other factors the court deems just and equitable.
(B) Compensatory spousal support when there has been a
significant financial or other contribution by one party to the
education, training, vocational skills, career or earning
capacity of the other party and when an order for compensatory
spousal support is otherwise just and equitable in all of the
circumstances. The factors to be considered by the court in
awarding compensatory spousal support include but are not limited
to:
(i) The amount, duration and nature of the contribution;
(ii) The duration of the marriage;
(iii) The relative earning capacity of the parties;
(iv) The extent to which the marital estate has already
benefited from the contribution;
(v) The tax consequences to each party; and
(vi) Any other factors the court deems just and equitable.
(C) Spousal maintenance as a contribution by one spouse to the
support of the other for either a specified or an indefinite
period. The factors to be considered by the court in awarding
spousal maintenance include but are not limited to:
(i) The duration of the marriage;
(ii) The age of the parties;
(iii) The health of the parties, including their physical,
mental and emotional condition;
(iv) The standard of living established during the marriage;
(v) The relative income and earning capacity of the parties,
recognizing that the wage earner's continuing income may be a
basis for support distinct from the income that the supported
spouse may receive from the distribution of marital property;
(vi) A party's training and employment skills;
(vii) A party's work experience;
(viii) The financial needs and resources of each party;
(ix) The tax consequences to each party;
(x) A party's custodial and child support responsibilities; and
(xi) Any other factors the court deems just and equitable.
(e) For the delivery to one party of such party's personal
property in the possession or control of the other at the time of
the giving of the judgment.
(f) For the division or other disposition between the parties
of the real or personal property, or both, of either or both of
the parties as may be just and proper in all the circumstances. A
retirement plan or pension or an interest therein shall be
considered as property. The court shall consider the contribution
of a spouse as a homemaker as a contribution to the acquisition
of marital assets. There is a rebuttable presumption that both
spouses have contributed equally to the acquisition of property
during the marriage, whether such property is jointly or
separately held. Subsequent to the filing of a petition for
annulment or dissolution of marriage or separation, the rights of
the parties in the marital assets shall be considered a species
of co-ownership, and a transfer of marital assets under a
judgment of annulment or dissolution of marriage or of separation
entered on or after October 4, 1977, shall be considered a
partitioning of jointly owned property. The court shall require
full disclosure of all assets by the parties in arriving at a
just property division. In arriving at a just and proper
division of property, the court shall consider reasonable costs
of sale of assets, taxes and any other costs reasonably
anticipated by the parties. If a spouse has been awarded spousal
support in lieu of a share of property, the court shall so state
on the record and shall order the obligor to provide for and
maintain life insurance in an amount commensurate with the
obligation and designating the obligee as beneficiary for the
duration of the obligation. If the obligor dies prior to the
termination of such support and such insurance is not in force,
the court may modify the method of payment of spousal support
under the judgment or order of support from installments to a
lump sum payment to the obligee from the estate of the obligor in
an amount commensurate with the present value of the spousal
support at the time of death. The obligee or attorney of the
obligee shall cause a certified copy of the judgment to be
delivered to the life insurance company or companies. If the
obligee or the attorney of the obligee delivers a true copy of
the judgment to the life insurance company or companies,
identifying the policies involved and requesting such
notification under this section, the company or companies shall
notify the obligee, as beneficiary of the insurance policy,
whenever the policyholder takes any action that will change the
beneficiary or reduce the benefits of the policy. Either party
may request notification by the insurer when premium payments
have not been made. If the obligor is ordered to provide for and
maintain life insurance, the obligor shall provide to the obligee
a true copy of the policy. The obligor shall also provide to the
obligee written notice of any action that will reduce the
benefits or change the designation of the beneficiaries under the
policy.
(g) For the creation of trusts as follows:
(A) For the appointment of one or more trustees to hold,
control and manage for the benefit of the children of the
parties, of the marriage or otherwise such of the real or
personal property of either or both of the parties, as the court
may order to be allocated or appropriated to their support and
welfare, and to collect, receive, expend, manage or invest any
sum of money awarded for the support and welfare of minor
children of the parties.
(B) For the appointment of one or more trustees to hold, manage
and control such amount of money or such real or personal
property of either or both of the parties, as may be set aside,
allocated or appropriated for the support of a party.
(C) For the establishment of the terms of the trust and
provisions for the disposition or distribution of such money or
property to or between the parties, their successors, heirs and
assigns after the purpose of the trust has been accomplished.
Upon petition of a party or a person having an interest in the
trust showing a change of circumstances warranting a change in
the terms of the trust, the court may make and direct reasonable
modifications in its terms.
(h) To change the name of either spouse to a name the spouse
held before the marriage. The court shall order a change if it is
requested by the affected party.
(i) For a money award for any sums of money found to be then
remaining unpaid upon any order or limited judgment entered under
ORS 107.095. If a limited judgment was entered under ORS 107.095,
the limited judgment shall continue to be enforceable for any
amounts not paid under the limited judgment unless those amounts
are included in the money award made by the general judgment.
(j) For an award of reasonable attorney fees and costs and
expenses reasonably incurred in the action in favor of a party or
in favor of a party's attorney.
(2) In determining the proper amount of support and the proper
division of property under subsection (1)(c), (d) and (f) of this
section, the court may consider evidence of the tax consequences
on the parties of its proposed judgment.
(3) Upon the filing of the judgment, the property division
ordered shall be deemed effective for all purposes. This transfer
by judgment, which shall affect solely owned property transferred
to the other spouse as well as commonly owned property in the
same manner as would a declaration of a resulting trust in favor
of the spouse to whom the property is awarded, is not a taxable
sale or exchange.
(4) If an appeal is taken from a judgment of annulment or
dissolution of marriage or of separation or from any part of a
judgment rendered in pursuance of the provisions of ORS 107.005
to 107.086, 107.095, 107.105, 107.115 to 107.174, 107.405,
107.425, 107.445 to 107.520, 107.540 and 107.610, the court
rendering the judgment may provide in a supplemental judgment for
any relief provided for in ORS 107.095 and shall provide that the
relief granted in the judgment is to be in effect only during the
pendency of the appeal. A supplemental judgment under this
subsection may be enforced as provided in ORS 33.015 to 33.155
and ORS chapter 18. A supplemental judgment under this subsection
may be appealed in the same manner as provided for supplemental
judgments modifying a domestic relations judgment under ORS
19.275.
(5) If an appeal is taken from the judgment or other appealable
order in a suit for annulment or dissolution of a marriage or for
separation and the appellate court awards costs and disbursements
to a party, the court may also award to that party, as part of
the costs, such additional sum of money as it may adjudge
reasonable as an attorney fee on the appeal.
(6) If, as a result of a suit for the annulment or dissolution
of a marriage or for separation, the parties to such suit become
owners of an undivided interest in any real or personal property,
or both, either party may maintain supplemental proceedings by
filing a petition in such suit for the partition of such real or
personal property, or both, within two years from the entry of
the judgment, showing among other things that the original
parties to the judgment and their joint or several creditors
having a lien upon any such real or personal property, if any
there be, constitute the sole and only necessary parties to such
supplemental proceedings. The procedure in the supplemental
proceedings, so far as applicable, shall be the procedure
provided in ORS 105.405 for the partition of real property, and
the court granting the judgment shall have in the first instance
and retain jurisdiction in equity therefor.
SECTION 3. ORS 107.135 is amended to read:
107.135. (1) The court may at any time after a judgment of
annulment or dissolution of marriage or of separation is granted,
upon the motion of either party and after service of notice on
the other party in the manner provided by ORCP 7, and after
notice to the Division of Child Support when required under
subsection (9) of this section:
(a) Set aside, alter or modify any portion of the judgment that
provides for the appointment and duties of trustees, for the
custody, parenting time, visitation, support and welfare of the
minor children { - and the children attending school, as
defined in ORS 107.108 - } , including any health or life
insurance provisions, for the support of a party or for life
insurance under ORS 107.820 or 107.830;
(b) Make an order, after service of notice to the other party,
providing for the future custody, support and welfare of minor
children residing in the state, who, at the time the judgment was
given, were not residents of the state, or were unknown to the
court or were erroneously omitted from the judgment;
(c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married; { + and + }
{ - (d) After service of notice on the child in the manner
provided by law for service of a summons, suspend future support
for any child who has ceased to be a child attending school as
defined in ORS 107.108; and - }
{ - (e) - } { + (d) + } Set aside, alter or modify any
portion of the judgment that provides for a property award based
on the enhanced earning capacity of a party that was awarded
before October 23, 1999. A property award may be set aside,
altered or modified under this paragraph:
(A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
(2) When a party moves to set aside, alter or modify the child
support provisions of the judgment:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection.
(3) In a proceeding under this section to reconsider the
spousal or child support provisions of the judgment, the
following provisions apply:
(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
(b) If the judgment provided for a termination or reduction of
spousal support at a designated age in anticipation of the
commencement of pension, Social Security or other entitlement
payments, and if the obligee is unable to obtain the anticipated
entitlement payments, that inability is sufficient change in
circumstances for the court to reconsider its order of support.
(c) If Social Security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of Social Security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
(4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a judgment, the following
provisions apply:
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits paid to a child, or to a
representative payee administering the funds for the child's use
and benefit, as a result of the obligor's disability or
retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before May 12,
2003.
(E) Apportioned Veterans' benefits or Survivors' and
Dependents' Educational Assistance under 38 U.S.C. chapter 35
paid to a child, or to a representative payee administering the
funds for the child's use and benefit, as a result of the
obligor's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before May 12,
2003.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
(5) Upon terminating a duty of spousal support, a court shall
make specific findings of the basis for the termination and shall
include the findings in the judgment.
(6) Any modification of child or spousal support granted
because of a change of circumstances may be ordered effective
retroactive to the date the motion for modification was served or
to any date thereafter.
(7) The judgment is final as to any installment or payment of
money that has accrued up to the time the nonmoving party, other
than the state, is served with a motion to set aside, alter or
modify the judgment. The court may not set aside, alter or modify
any portion of the judgment that provides for any payment of
money, either for minor children or for the support of a party,
that has accrued before the motion is served. However:
(a) The court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or judgment, during which
the obligor, with the knowledge and consent of the obligee or
pursuant to court order, has physical custody of the child; and
(b) The court may allow, as provided in the rules of the Child
Support Program, a dollar-for-dollar credit against child support
arrearages for any Social Security or Veterans' benefits paid
retroactively to the child, or to a representative payee
administering the funds for the child's use and benefit, as a
result of an obligor's disability or retirement.
(8) In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney fee
and costs for the benefit of the other party. If a party is found
to have acted in bad faith, the court shall order that party to
pay a reasonable attorney fee and costs of the defending party.
(9) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state, a true copy of
the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department
of Justice or on the branch office providing support services to
the county in which the motion is filed.
(10)(a) Except as provided in ORS 109.701 to 109.834, the
courts of Oregon, having once acquired personal and subject
matter jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
(11) In a proceeding under this section to reconsider
provisions in a judgment relating to custody or parenting time,
the court may consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances.
(12) In a proceeding under this section to reconsider
provisions in a judgment relating to parenting time, the court
may suspend or terminate a parent's parenting time with a child
if the court finds that the parent has abused a controlled
substance and that the parenting time is not in the best
interests of the child. If a court has suspended or terminated a
parent's parenting time with a child for reasons described in
this subsection, the court may not grant the parent future
parenting time until the parent has shown that the reasons for
the suspension or termination are resolved and that reinstated
parenting time is in the best interests of the child. Nothing in
this subsection limits the court's authority under subsection
(1)(a) of this section.
(13) In a proceeding under this section to reconsider
provisions in a judgment relating to custody, temporary placement
of the child by the custodial parent pursuant to ORS 109.056 (3)
with the noncustodial parent as a result of military deployment
of the custodial parent is not, by itself, a change of
circumstances. Any fact relating to the child and the parties
occurring subsequent to the last custody judgment, other than the
custodial parent's temporary placement of the child pursuant to
ORS 109.056 (3) with the noncustodial parent, may be considered
by the court when making a change of circumstances determination.
(14) Within 30 days after service of notice under subsection
(1) of this section, the party served shall file a written
response with the court.
(15)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 4. ORS 107.485 is amended to read:
107.485. A marriage may be dissolved by the summary dissolution
procedure specified in this section and ORS 107.490 when all of
the following conditions exist at the time the proceeding is
commenced:
(1) The jurisdictional requirements of ORS 107.025 and 107.075
are met.
(2)(a) There are no minor children born to the parties or
adopted by the parties during the marriage;
{ - (b) There are no children over age 18 attending school,
as described in ORS 107.108, either born to the parties or
adopted by the parties during the marriage; - }
{ - (c) - } { + (b) + } There are no minor children born to
or adopted by the parties prior to the marriage; and
{ - (d) - } { + (c) + } The wife is not now pregnant.
(3) The marriage is not more than 10 years in duration.
(4) Neither party has any interest in real property wherever
situated.
(5) There are no unpaid obligations in excess of $15,000
incurred by either or both of the parties from the date of the
marriage.
(6) The total aggregate fair market value of personal property
assets in which either of the parties has any interest, excluding
all encumbrances, is less than $30,000.
(7) The petitioner waives any right to spousal support.
(8) The petitioner waives any rights to pendente lite orders
except those pursuant to ORS 107.700 to 107.735 or 124.005 to
124.040.
(9) The petitioner knows of no other pending domestic relations
suits involving the marriage in this or any other state.
SECTION 5. ORS 108.045 is amended to read:
108.045. (1) The expenses of the family and the education of
minor children, including stepchildren, are chargeable upon the
property of both husband and wife, or either of them. However,
with regard to stepchildren, the obligation shall cease upon
entry of a judgment of dissolution.
(2) As used in this section, 'stepchild' means a child under
the age of 18 { - , or a child attending school as defined in
ORS 107.108 - } who is in the custody of one biological or
adoptive parent who is married to and not legally separated from
a person other than the second biological or adoptive parent of
such child.
(3) Notwithstanding subsection (1) of this section, the legal
duty of a parent to provide support for a child, as otherwise
required by law, shall not be affected.
SECTION 6. ORS 108.110 is amended to read:
108.110. (1) Any married person may apply to the circuit court
of the county in which the married person resides or in which the
spouse may be found for an order upon the spouse to provide for
support of the married person or for the support of minor
children { - and children attending school, or both, - } and,
if the married person initiating the action for support is a
woman who is pregnant, her unborn child, or both, if her spouse
is the natural father of { - such - } { + the + } children
{ - , children attending school - } or unborn child or if her
spouse is the adoptive father of { - such - } { + the + }
children { - or children attending school - } . The married
person initiating the action for support may apply for the order
by filing in such county a petition setting forth the facts and
circumstances upon which the married person relies for such
order. If satisfied that a just cause exists, the court shall
direct that the married person's spouse appear at a time set by
the court to show cause why an order of support should not be
entered in the matter. { - The provisions of ORS 107.108 apply
to an order entered under this section for the support of a child
attending school. - }
{ - (2) As used in this section, 'child attending school' has
the meaning given that term in ORS 107.108. - }
{ - (3) - } { + (2) + } The petitioner shall state in the
petition, to the extent known:
(a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including a proceeding brought under ORS 107.085,
109.100, 125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS
chapter 110; and
(b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage.
{ - (4) - } { + (3) + } The petitioner shall include with
the petition a certificate regarding any pending support
proceeding and any existing support order. The petitioner shall
use a certificate that is in a form established by court rule and
include information required by court rule and subsection
{ - (3) - } { + (2) + } of this section.
{ - (5) - } { + (4) + } The provisions of this section
apply equally to cases where it is the husband making application
for a support order.
{ - (6) - } { + (5) + } In any proceeding under this
section, the obligee, as that person is defined in ORS 110.303,
is a party to the proceeding.
SECTION 7. ORS 109.072 is amended to read:
109.072. (1) As used in this section:
(a) 'Blood tests' has the meaning given that term in ORS
109.251.
(b) 'Paternity judgment' means a judgment or administrative
order that:
(A) Expressly or by inference determines the paternity of a
child, or that imposes a child support obligation based on the
paternity of a child; and
(B) Resulted from a proceeding in which blood tests were not
performed and the issue of paternity was not challenged.
(c) 'Petition' means a petition or motion filed under this
section.
(d) 'Petitioner' means the person filing a petition or motion
under this section.
(2)(a) The following may file in circuit court a petition to
vacate or set aside the paternity determination of a paternity
judgment, including any child support obligations established in
the paternity judgment, and for a judgment of nonpaternity:
(A) A party to the paternity judgment.
(B) The Department of Human Services if the child is in the
care and custody of the Department of Human Services under ORS
chapter 419B.
(C) The Division of Child Support of the Department of Justice
if the child support rights of the child or of one of the parties
to the paternity judgment have been assigned to the state.
(b) The petitioner may file the petition in the circuit court
proceeding in which the paternity judgment was entered, in a
related proceeding or in a separate action. The petitioner shall
attach a copy of the paternity judgment to the petition.
(c) If the ground for the petition is that the paternity
determination was obtained by or was the result of mistake,
inadvertence, surprise or excusable neglect, the petitioner may
not file the petition more than one year after entry of the
paternity judgment.
(d) If the ground for the petition is that the paternity
determination was obtained by or was the result of fraud,
misrepresentation or other misconduct of an adverse party, the
petitioner may not file the petition more than one year after the
petitioner discovers the fraud, misrepresentation or other
misconduct.
(3) In the petition, the petitioner shall:
(a) Designate as parties:
(A) All persons who were parties to the paternity judgment;
{ - (B) The child if the child is a child attending school,
as defined in ORS 107.108; - }
{ - (C) - } { + (B) + } The Department of Human Services if
the child is in the care and custody of the Department of Human
Services under ORS chapter 419B; and
{ - (D) - } { + (C) + } The Administrator of the Division
of Child Support of the Department of Justice if the child
support rights of the child or of one of the parties to the
paternity judgment have been assigned to the state.
(b) Provide the full name and date of birth of the child whose
paternity was determined by the paternity judgment.
(c) Allege the facts and circumstances that resulted in the
entry of the paternity judgment and explain why the issue of
paternity was not contested.
(4) After filing a petition under this section, the petitioner
shall serve a summons and a true copy of the petition on all
parties as provided in ORCP 7.
(5) The court, on its own motion or on the motion of a party,
may appoint counsel for the child. However, if requested to do so
by the child, the court shall appoint counsel for the child. A
reasonable fee for an attorney so appointed may be charged
against one or more of the parties or as a cost in the
proceeding, but may not be charged against funds appropriated for
public defense services.
(6) The court may order the mother, the child and the man whose
paternity of the child was determined by the paternity judgment
to submit to blood tests. In deciding whether to order blood
tests, the court shall consider the interests of the parties and
the child and, if it is just and equitable to do so, may deny a
request for blood tests. If the court orders blood tests under
this subsection, the court shall order the petitioner to pay the
costs of the blood tests.
(7) Unless the court finds, giving consideration to the
interests of the parties and the child, that to do so would be
substantially inequitable, the court shall vacate or set aside
the paternity determination of the paternity judgment, including
provisions imposing child support obligations, and enter a
judgment of nonpaternity if the court finds by a preponderance of
the evidence that:
(a) The paternity determination was obtained by or was the
result of:
(A) Mistake, inadvertence, surprise or excusable neglect; or
(B) Fraud, misrepresentation or other misconduct of an adverse
party;
(b) The mistake, inadvertence, surprise, excusable neglect,
fraud, misrepresentation or other misconduct was discovered by
the petitioner after the entry of the paternity judgment; and
(c) Blood tests establish that the man is not the biological
father of the child.
(8) If the court finds that the paternity determination of a
paternity judgment was obtained by or was the result of fraud,
the court may vacate or set aside the paternity determination
regardless of whether the fraud was intrinsic or extrinsic.
(9) If the court finds, based on blood test evidence, that the
man may be the biological father of the child and that the
cumulative paternity index based on the blood test evidence is 99
or greater, the court shall deny the petition.
(10) The court may grant the relief authorized by this section
upon a party's default, or by consent or stipulation of the
parties, without blood test evidence.
(11) A judgment entered under this section vacating or setting
aside the paternity determination of a paternity judgment and
determining nonpaternity:
(a) Shall contain the full name and date of birth of the child
whose paternity was established or declared by the paternity
judgment.
(b) Shall vacate and terminate any ongoing and future child
support obligations arising from or based on the paternity
judgment.
(c) May vacate or deem as satisfied, in whole or in part,
unpaid child support obligations arising from or based on the
paternity judgment.
(d) May not order restitution from the state for any sums paid
to or collected by the state for the benefit of the child.
(12) If the court vacates or sets aside the paternity
determination of a paternity judgment under this section and
enters a judgment of nonpaternity, the petitioner shall send a
court-certified true copy of the judgment entered under this
section to the State Registrar of the Center for Health
Statistics and to the Department of Justice as the state
disbursement unit. Upon receipt of the court-certified true copy
of the judgment entered under this section, the state registrar
shall correct any records maintained by the state registrar that
indicate that the male party to the paternity judgment is the
father of the child.
(13) The court may award to the prevailing party a judgment for
reasonable attorney fees and costs, including the cost of any
blood tests ordered by the court and paid by the prevailing
party.
(14) A judgment entered under this section vacating or setting
aside the paternity determination of a paternity judgment and
determining nonpaternity is not a bar to further proceedings to
determine paternity, as otherwise allowed by law.
(15) If a man whose paternity of a child has been determined by
a paternity judgment has died, an action under this section may
not be initiated by or on behalf of the estate of the man.
(16) This section does not limit the authority of the court to
vacate or set aside a judgment under ORCP 71, to modify a
judgment within a reasonable period, to entertain an independent
action to relieve a party from a judgment, to vacate or set aside
a judgment for fraud upon the court or to render a declaratory
judgment under ORS chapter 28.
(17) This section shall be liberally construed to the end of
achieving substantial justice.
SECTION 8. ORS 109.124 is amended to read:
109.124. As used in ORS 109.124 to 109.230, unless the context
requires otherwise:
{ - (1) 'Child attending school' has the meaning given that
term in ORS 107.108. - }
{ - (2) - } { + (1) + } '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.
{ - (3) - } { + (2) + } 'Respondent' may include, but is
not limited to, one or more persons who may be the father of a
child born out of wedlock, the husband of a woman who has or may
have a child born out of wedlock, the mother of a child born out
of wedlock, the woman pregnant with a child who may be born out
of wedlock, or the duly appointed and acting guardian of the
child or conservator of the child's estate.
SECTION 9. ORS 109.155 is amended to read:
109.155. (1) The court, in a private hearing, shall first
determine the issue of paternity. If the respondent admits the
paternity, the admission shall be reduced to writing, verified by
the respondent and filed with the court. If the paternity is
denied, corroborating evidence, in addition to the testimony of
the parent or expectant parent, shall be required.
(2) If the court finds, from a preponderance of the evidence,
that the petitioner or the respondent is the father of the child
who has been, or who may be born out of wedlock, the court shall
then proceed to a determination of the appropriate relief to be
granted. The court may approve any settlement agreement reached
between the parties and incorporate the agreement into any
judgment rendered, and the court may order such investigation or
the production of such evidence as the court deems appropriate to
establish a proper basis for relief.
(3) The court, in its discretion, may postpone the hearing from
time to time to facilitate any investigation or the production of
such evidence as it deems appropriate.
(4) The court may order either parent to pay such sum as the
court deems appropriate for the past and future support and
maintenance of the child during the child's minority { - and
while the child is attending school, as defined in ORS
107.108, - } and the reasonable and necessary expenses incurred
or to be incurred in connection with prenatal care, expenses
attendant with the birth and postnatal care. The court may grant
the prevailing party reasonable costs of suit, which may include
expert witness fees, and reasonable attorney fees at trial and on
appeal. { - The provisions of ORS 107.108 apply to an order
entered under this section for the support of a child attending
school. - }
(5) An affidavit certifying the authenticity of documents
substantiating expenses set forth in subsection (4) of this
section is prima facie evidence to establish the authenticity of
the documents.
(6)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under this section, the court may enforce
the terms set forth in a stipulated judgment of paternity signed
by the parties, a judgment of paternity resulting from a
settlement on the record or a judgment of paternity incorporating
a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce a judgment,
including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
set aside, alter or modify a judgment under ORS 109.165 or to
seek enforcement of an ancillary agreement to the judgment.
(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 10. ORS 109.165 is amended to read:
109.165. (1) Upon motion of either party, the court may set
aside, alter or modify any portion of the judgment that provides
for the support of the minor child { - or child attending
school, as defined in ORS 107.108 - } . As to any installment or
payment of money that has accrued up to the time the nonmoving
party, other than the state, is served with a motion to set
aside, alter or modify the judgment, the judgment is final and
the court may not change it. However, the court may allow a
credit against child support arrearages for periods of time,
excluding reasonable parenting time unless otherwise provided by
order or judgment, during which the obligor, with the knowledge
and consent of the obligee or pursuant to court order, has
physical custody of the child. { - A child attending school is
a party for purposes of this section. - }
(2) The moving party shall state in the motion, to the extent
known:
(a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the child,
including a proceeding brought under ORS 25.287, 109.100,
125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS chapter
110; and
(b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the child, other than the judgment the party is moving
to set aside, alter or modify.
(3) The moving party shall include with the motion a
certificate regarding any pending support proceeding and any
existing support order other than the judgment the party is
moving to set aside, alter or modify. The party shall use a
certificate that is in a form established by court rule and
include information required by court rule and subsection (2) of
this section.
(4)(a) It is the policy of this state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 11. ORS 416.400 is amended to read:
416.400. As used in ORS 416.400 to 416.465, unless the context
requires otherwise:
(1) 'Administrator' has the meaning given that term in ORS
25.010.
(2) 'Court' means any circuit court of this state and any court
in another state having jurisdiction to determine the liability
of persons for the support of another person.
(3) 'Court order' means any judgment or order of any Oregon
court that orders payment of a set or determinable amount of
support money by the subject parent and does not include an order
or judgment in any proceeding in which the court did not order
support.
(4) 'Department' means the Department of Justice of this state
or its equivalent in any other state from which a written request
for establishment or enforcement of a support obligation is
received under ORS 416.415.
(5) 'Dependent child' means any person under the age of 18 who
is not otherwise emancipated, self-supporting, married or a
member of the Armed Forces of the United States. { - '
Dependent child' also means a child attending school as defined
in ORS 107.108. - }
(6) 'Office' means the office of the Division of Child Support
or the office of the district attorney.
(7) 'Parent' means the natural or adoptive father or mother of
a dependent child or youth offender. 'Parent' also means
stepparent when the person has an obligation to support a
dependent child under ORS 108.045.
(8) 'Past support' means the amount of child support that could
have been ordered and accumulated as arrears against a parent for
the benefit of a child for any period of time during which the
child was not supported by the parent and for which period no
support order was in effect.
(9) 'Public assistance' means any money payments made by the
state that are paid to or for the benefit of any dependent child
or youth offender, including but not limited to payments made so
that food, shelter, medical care, clothing, transportation or
other necessary goods, services or items may be provided, and
payments made in compensation for the provision of the
necessities. 'Public assistance' does not include money payments
made by the state to or for the benefit of a dependent child as
the result of the child's removal from the parent's home against
the wishes of the parent, if the Department of Human Services
determines after completion of a child protective services
assessment that the report of abuse is unfounded according to
rules adopted by the Department of Human Services.
(10) 'Youth offender' has the meaning given that term in ORS
419A.004.
SECTION 12. ORS 416.415 is amended to read:
416.415. (1)(a) At any time after the state is assigned support
rights, a public assistance payment is made, an application for
enforcement services under ORS 25.080 is made by an individual
who is not a recipient of public assistance or a written request
for enforcement of a support obligation is received from the
state agency of another state responsible for administering the
federal child support enforcement program, the administrator may,
if there is no court order or administrative support order, issue
a notice and finding of financial responsibility. The notice
shall be served upon the parent in the manner prescribed for
service of summons in a civil action, or by certified mail,
return receipt requested. Notices that involve the establishment
of paternity must be served by personal service. All notices may
be personally served by the administrator on the premises of the
offices of the administrator.
(b) The administrator shall serve the notice and finding issued
under this section upon the obligee. Service shall be by regular
mail.
(2) The administrator shall include in the notice:
(a) A statement of the name of the caretaker relative or agency
and the name of the dependent child for whom support is to be
paid;
(b) A statement of the monthly support for which the parent
shall be responsible;
(c) A statement of the past support for which the parent shall
be responsible;
(d) A statement that the parent may be required to provide
health care coverage for the dependent child whenever the
coverage is available to the parent at a reasonable cost;
(e) To the extent known, a statement of:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the
dependent child, including a proceeding brought under ORS 25.287,
107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165,
125.025, 416.425, 419B.400 or 419C.590 or ORS chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the dependent child;
(f) A statement that if the parent or the obligee desires to
discuss the amount of support or health care coverage that the
parent is required to pay or provide, the parent or the obligee
may contact the office that sent the notice and request a
negotiation conference. If no agreement is reached on the monthly
support to be paid, the administrator may issue a new notice and
finding of financial responsibility, which may be sent to the
parent and to the obligee by regular mail addressed to the
parent's and to the obligee's last-known address, or if
applicable, the parent's or the obligee's attorney's last-known
address;
(g) A statement that if the parent or the obligee objects to
all or any part of the notice and finding of financial
responsibility, then the parent or the obligee must send to the
office issuing the notice, within 20 days of the date of service,
a written response that sets forth any objections and requests a
hearing. In those cases where the administrator is seeking to
establish paternity, then the alleged parent and the obligee will
have 30 days to respond instead of 20 days;
(h) A statement that if such a timely response is received by
the appropriate office, either the parent or the obligee or both
shall have the right to a hearing; and that if no timely written
response is received, the administrator may enter an order in
accordance with the notice and finding of financial
responsibility;
(i) A statement that as soon as the order is entered, the
property of the parent is subject to collection action, including
but not limited to wage withholding, garnishment and liens and
execution thereon;
(j) A reference to ORS 416.400 to 416.465;
(k) A statement that both the parent and the obligee are
responsible for notifying the office of any change of address or
employment;
(L) A statement that if the parent has any questions, the
parent should telephone or visit the appropriate office or
consult an attorney; and
(m) Such other information as the administrator finds
appropriate.
(3) If the paternity of the dependent child has not been
legally established, the notice and finding of financial
responsibility shall also include:
(a) An allegation that the person is the parent of the
dependent child;
(b) The name of the child's other parent;
(c) The child's date of birth;
(d) The probable time or period of time during which conception
took place; and
(e) A statement that if the alleged parent or the obligee does
not timely send to the office issuing the notice a written
response that denies paternity and requests a hearing, then the
administrator, without further notice to the alleged parent, or
to the obligee, may enter an order that declares and establishes
the alleged parent as the legal parent of the child.
(4) The statement of monthly future support required under
subsection (2)(b) and the statement of past support required
under subsection (2)(c) of this section are to be computed as
follows:
(a) If there is sufficient information available concerning the
parent's financial and living situation, the formula provided for
in ORS 25.275 and 25.280 shall be used; or
(b) If there is insufficient information available to use the
formula, an allegation of ability to pay shall be the basis of
the statement.
(5) The parent or alleged parent and the obligee shall have
time to request a hearing as outlined in subsection (2)(g) of
this section. The time limits may be extended by the
administrator and are nonjurisdictional.
(6) If a timely written response setting forth objections and
requesting a hearing is received by the appropriate office, a
hearing shall be held under ORS 416.427.
(7) If no timely written response and request for hearing is
received by the appropriate office, the administrator may enter
an order in accordance with the notice, and shall include in that
order:
(a) If the paternity of the dependent child is established by
the order, a declaration of that fact;
(b) The amount of monthly support to be paid, with directions
on the manner of payment;
(c) The amount of past support to be ordered against the
parent;
(d) Whether health care coverage is to be provided for the
dependent child;
(e) The name of the caretaker relative or agency and the name
and birthdate of the dependent child for whom support is to be
paid; and
(f) A statement that the property of the parent is subject to
collection action, including but not limited to wage withholding,
garnishment and liens and execution thereon.
(8) The parent and the obligee shall be sent a copy of the
order by regular mail addressed to the last-known address of each
of the parties or if applicable, to the last-known address of an
attorney of record for a party. The order is final, and action by
the administrator to enforce and collect upon the order,
including arrearages, may be taken from the date of issuance of
the order.
{ - (9) The provisions of ORS 107.108 apply to an order
entered under this section for the support of a child attending
school. - }
SECTION 13. ORS 419B.400 is amended to read:
419B.400. (1) The court may, after a hearing on the matter,
require the parents or other person legally obligated to support
a child alleged to be within the jurisdiction of the court under
ORS 419B.100 or a ward to pay toward the child or ward's support
such amounts at such intervals as the court may direct { - ,
even though the child or ward is over 18 years of age as long as
the child or ward is a child attending school, as defined in ORS
107.108 - } .
(2) At least 21 days before the hearing, the court shall notify
the Administrator of the Division of Child Support of the
Department of Justice, or the branch office providing support
services to the county where the hearing will be held, of the
hearing. Before the hearing the administrator shall inform the
court, to the extent known:
(a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the child
or ward, including a proceeding brought under ORS 25.287,
107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165,
125.025, 416.400 to 416.465 or 419C.590 or ORS chapter 110; and
(b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the child or ward.
(3) The Judicial Department and the Department of Justice may
enter into an agreement regarding how the courts give the notice
required under subsection (2) of this section to the Department
of Justice and how the Department of Justice gives the
information described in subsection (2)(a) and (b) to the courts.
(4) The court, in determining the amount to be paid, shall use
the scale and formula provided for in ORS 25.275 and 25.280.
Unless otherwise ordered, the amounts so required to be paid
shall be paid to the Department of Justice or the county clerk,
whichever is appropriate, for transmission to the person,
institution or agency having legal custody of the child or ward.
SECTION 14. ORS 419C.590 is amended to read:
419C.590. (1) The court may, after a hearing on the matter,
require the parents or other person legally obligated to support
a youth offender to pay toward the youth offender's support such
amounts at such intervals as the court may direct, while the
youth offender is within the jurisdiction of the court { - even
though the youth offender is over 18 years of age as long as the
youth offender is a child attending school, as defined in ORS
107.108 - } .
(2) At least 21 days before the hearing, the court shall notify
the Administrator of the Division of Child Support of the
Department of Justice, or the branch office providing support
services to the county where the hearing will be held, of the
hearing. Before the hearing the administrator shall inform the
court, to the extent known:
(a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the youth
offender, including a proceeding brought under ORS 25.287,
107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165,
125.025, 416.400 to 416.465 or 419B.400 or ORS chapter 110; and
(b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the youth offender.
(3) The Judicial Department and the Department of Justice may
enter into an agreement regarding how the courts give the notice
required under subsection (2) of this section to the Department
of Justice and how the Department of Justice gives the
information described in subsection (2)(a) and (b) to the courts.
(4) The court, in determining the amount to be paid, shall use
the scale and formula provided for in ORS 25.275 and 25.280.
Unless otherwise ordered, the amounts so required to be paid
shall be paid to the Department of Justice or the county clerk,
whichever is appropriate, for transmission to the person,
institution or agency having legal custody of the youth offender.
SECTION 15. ORS 25.080 is amended to read:
25.080. (1) The following entity is primarily responsible for
providing the support enforcement services described in
subsection (4) of this section when an application as described
in ORS 25.084 is made, or when an assignment of support rights is
made to the state:
(a) The Division of Child Support of the Department of Justice:
(A) If support rights are, or were within the past five months,
assigned to this or another state; or
(B) In any case where arrearage under a support order is
assigned or owed to or the right to recover back support or state
debt is held by this state or another state.
(b) Except as provided in subsection (6) of this section, the
district attorney in cases other than those described in
paragraph (a) of this subsection if an application as described
in ORS 25.084 is made by the obligee, by the obligor, by a person
having physical custody of a minor child { - or by a child
attending school, as defined in ORS 107.108 - } .
(2) The provisions of this section apply to support enforcement
services for any order or judgment that is or could be entered
under ORS 419B.400 or 419C.590 or ORS chapter 107, 108, 109, 110
or 416. The entity specified in subsection (1) of this section
shall provide the support enforcement services on behalf of the
State of Oregon and not on behalf of any other party or on behalf
of a parent. The Department of Justice shall adopt rules
addressing the provision of support enforcement services when the
purposes of the state in providing those services may be
contradictory in individual cases.
(3) Notwithstanding the division of responsibility for
providing support enforcement services between the Division of
Child Support and the district attorney as described in
subsection (1) of this section, provision of support enforcement
services may not be challenged on the basis that the entity
providing the services in a particular case is not the entity
responsible for the case under subsection (1) of this section.
(4) When responsible for providing support enforcement services
and there is sufficient evidence available to support the action
to be taken, the entity described in subsection (1) of this
section:
(a) Shall establish and enforce any child support obligation;
(b) Shall establish paternity;
(c) Shall enforce spousal support when the obligee is living
with the obligor's child for whom support enforcement services
are being provided and those services are funded in part by
federal moneys;
(d) May enforce any other order or judgment for spousal
support;
(e) Shall, on behalf of the state, initiate and respond to
child support modification proceedings based upon a substantial
change of circumstances;
(f) Shall, on behalf of the state, initiate and respond to
child support modification proceedings based upon a modification
conducted under ORS 25.287 concerning existing child support
orders;
(g) Shall establish and enforce obligations to provide medical
insurance coverage for dependent children;
(h) Shall ensure compliance with the provisions of 42 U.S.C.
651 to 669 and 45 C.F.R. Chapter III as authorized by state law;
(i) Shall carry out the policy of the State of Oregon regarding
child support obligations as expressed in ORS 416.405; and
(j) Shall ensure that child support orders are in compliance
with the formula established by this chapter.
(5) In any proceeding under subsection (4) of this section, the
parties are those described in ORS 416.407.
(6) The district attorney of any county and the department may
provide by agreement for assumption by the Division of Child
Support of the functions of the district attorney under
subsection (1) of this section or for redistribution between the
district attorney and the Division of Child Support of all or any
portion of the duties, responsibilities and functions set forth
in subsections (1) and (4) of this section.
(7) All county governing bodies and all district attorneys
shall enter into child support cooperative agreements with the
department. The following apply to this subsection:
(a) The agreements shall contain appropriate terms and
conditions sufficient for the state to comply with all child
support enforcement service requirements under federal law; and
(b) If this state loses any federal funds due to the failure of
a county governing body or district attorney to either enter into
an agreement under this subsection or to provide sufficient
support enforcement service, the county shall be liable to the
department for, and the liability shall be limited to, the amount
of money the state determines it lost because of the failure. The
state shall offset the loss from any moneys the state is holding
for or owes the county or from any moneys the state would pay to
the county for any purpose.
(8) The Department of Justice shall enter into an agreement
with the Oregon District Attorneys Association to establish a
position or positions to act as a liaison between the Division of
Child Support and those district attorneys who provide support
enforcement services under this section. The department shall
fund the position or positions. The Oregon District Attorneys
Association shall administer the liaison position or positions
under the agreement. The liaison shall work to:
(a) Enhance the participation and interaction of the district
attorneys in the development and implementation of Child Support
Program policies and services; and
(b) Increase the effectiveness of child support enforcement
services provided by the district attorneys.
(9) The district attorney or the Division of Child Support,
whichever is appropriate, shall provide the services specified in
subsections (1) and (4) of this section to any applicant, but may
in their discretion, upon a determination and notice to the
applicant that the prospect of successful recovery from the
obligor of a portion of the delinquency or future payments is
remote, require payment to the district attorney or the Division
of Child Support of an application fee, in accordance with an
application fee schedule established by rule by the department.
If service performed results in the district attorney or the
Division of Child Support recovering any support enforcement
fees, the fees shall be paid to the applicant in an amount equal
to the amount of the application fee.
(10) An obligee may request the Division of Child Support or a
district attorney to cease all collection efforts if it is
anticipated that physical or emotional harm will be caused to the
parent or caretaker relative or the child for whom support was to
have been paid. The department, by rule, shall set out the
circumstances under which such requests shall be honored.
SECTION 16. ORS 25.164 is amended to read:
25.164. (1) If the payment method for support payments set
forth in the support judgment does not require that payments be
made through the Department of Justice, an application may be
made to the department for support enforcement services under
this chapter and under federal laws and regulations relating to
support payments and enforcement of judgments. An application
under this section may be made by an obligee, by an obligor
{ - , - } { + or + } by a person having physical custody of a
minor child { - or by a child attending school, as defined in
ORS 107.108 - } .
(2) An application under subsection (1) of this section must be
in the form prescribed by ORS 25.084.
(3) If an application is made under subsection (1) of this
section, the administrator shall give notice to all parties that
the application has been made. All support payments under the
judgment that are due after the notice is given must be made
through the department.
(4) When an application is made under this section, the method
of support accounting previously used for the support judgment
terminates on the first day of the month following the month the
application is made, and the department shall thereafter provide
support accounting for the support judgment and disburse amounts
paid under the judgment.
(5) If an application is made under this section and a complete
record of support payments does not exist, the department may
establish a record of arrearage under ORS 25.167.
SECTION 17. { + (1) That portion of a judgment or order
entered before the effective date of this 2011 Act that requires
the payment of support for a child attending school, as defined
in ORS 107.108 as in effect immediately before the effective date
of this 2011 Act, is void and unenforceable.
(2) Subsection (1) of this section does not affect a payment of
support for a child attending school that became due before the
effective date of this 2011 Act. + }
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