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No, ORS 25.010 does not contain a conclusive presumption paternity.

Prior to January 1, 2006, a man who was married to and cohabiting with his wife at the time his wife conceived a child was deemed as a matter of law to be the father of the child, provided the husband was not at the time of conception sterile or impotent. Former ORS 109.070(1)(a) (2003). However, legislation enacted in 2005 temporarily repealed the “conclusive presumption” for two years, commencing January 1, 2006. See Or Laws 2005, ch 160, §§ 11, 17 and 23. Subsequent legislation enacted in 2007 and effective as of January 1, 2008, made the repeal permanent. See Or Laws 2007, ch 454, § 1.

NOTE: Although denominated by former ORS 109.070(1)(a) [2003 ed.] as a “conclusive presumption,” it is better viewed as a substantive rule of law. See Hodge and Hodge, 301 Or 433, 435-436, 722 P2d 1235 (1986).

FURTHER NOTE: The ORS codification arrangement is somewhat confusing. The legislation that repealed the paternity establishment rule that was formerly codified as ORS 109.070(1)(a) also revised the “rebuttable presumption” rule that was previously codified as ORS 109.070(1)(b) and re-assigned it to be ORS 109.070(1)(a). Practitioners should be careful to avoid confusing former ORS 109.070(1)(a) with current ORS 109.070(1)(a).

In addition to making permanent the repeal of the conclusive presumption rule, Oregon Laws 2007, chapter 454, also created a new statutory procedure, codified as ORS 109.072, for obtaining a judgment of nonpaternity in cases involving paternity based on marital status. The repeal of the conclusive presumption rule raises a question as to the continued applicability of the rule to actions commenced under ORS 109.072 that involve a child born at a time when the rule was in effect.

Guidance on this question may be gleaned from State ex rel Juvenile Department of Lane County v. G.W., 217 Or App 513, 177 P3d 24 (2008), in which the trial court concluded that the version of ORS 109.070(1)(a) in effect at the time of child’s 2002 birth, ORS 109.070(1)(a) (2001), was controlling and that under that version of the statute, the man married to a child’s mother at the time of the child’s conception was conclusively presumed to be child’s father. Father appealed. The Court of Appeals reversed, holding that Oregon Laws 2005, chapter 160, which effectively repealed the “conclusion presumption” rule as of January 1, 2006, did not bar a judgment of nonpaternity even if the child as to whom nonpaternity is sought was conceived during marriage prior to January 1, 2006.

“The text and context of Oregon Laws 2005, chapter 160, section 9, demonstrate a legislative intent to afford relief under that section to a ‘legal father’ for purposes of ORS 109.070(1) without regard to whether the child was born before the effective date of section 9 [January 1, 2006] or whether paternity was established by the statutory presumptions in effect before that date.” 217 Or App at 519.

The legislature’s 2005 repeal of the conclusive presumption rule was reaffirmed with the legislature’s 2007 enactment of Oregon Laws 2007, chapter 454, effective January 1, 2008. The 2007 legislation created a new procedure, now codified as ORS 109.072, for challenging the marital presumption of paternity and obtaining a judgment of nonpaternity when specified statutory prerequisites are met, including genetic tests establishing that the man is not the child’s biological father. It would appear that the appellate court’s ruling in G.W. as to the inapplicability of the former conclusive presumption rule to actions commenced after December 31, 2004, continues to apply to actions commenced under ORS 109.072 after on December 31, 2006.

LAWRENCE D. GORIN

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