Dept. of Human Service v. A. W. I.

Under ORS 109.070(5)(f), a Voluntary Acknowledgment of Paternity (VAP) “shall” be set aside “if the court finds by a preponderance of the evidence that the acknowledgment was signed because of fraud, duress or material mistake of fact . . . unless, giving consideration to the interests of the parties and the child, the court finds that setting aside the acknowledgment would be substantially inequitable.”

Appellant, who is A’s biological father, appealed the Dept. of Human Services’ (DHS) decision denying his petition, pursuant to ORS 109.070(5)(b)(C), to change the designation of paternity from child A’s legal father to Appellant. On appeal, Appellant argued that the court erred in failing to make a record sufficient to permit review of the court’s discretionary decision to decline to set aside the Voluntary Acknowledgment of Paternity signed by A’s legal father at the time of A’s birth. DHS waived its appearance and indicated its position “aligned” with Appellant’s, and neither the mother nor the legal father, appeared on appeal. Under ORS 109.070(5)(f), a Voluntary Acknowledgment of Paternity (VAP) “shall” be set aside “if the court finds by a preponderance of the evidence that the acknowledgment was signed because of fraud, duress or material mistake of fact . . . unless, giving consideration to the interests of the parties and the child, the court finds that setting aside the acknowledgment would be substantially inequitable.” In this case although the trial court acknowledged it needed to consider the “pros” and the “cons” as factors before exercising its discretion, the Court was unable to determine what “con” factors convinced the trial court that it would be “substantially inequitable” to establish paternity with Appellant. Reversed and remanded.