Opinion
January 31, 1992
Appeal from the Cattaraugus County Family Court, Trost, J.H.O.
Present — Denman, P.J., Boomer, Green, Pine and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: In determining the issue of paternity, the Judicial Hearing Officer erred in awarding custody to petitioner because the issue of custody was not raised either in the paternity petition or at the hearing (see, Obey v. Degling, 37 N.Y.2d 768; Matter of Blake v Blake, 106 A.D.2d 916; Allen v. Kriesel, 87 A.D.2d 992). Although the order of the Judicial Hearing Officer was not appealable as of right (see, Family Ct Act § 1112; Matter of Jane PP. v. Paul QQ., 64 N.Y.2d 15, 17; Matter of Plantz v. Rounds, 115 A.D.2d 951), in the exercise of our discretion, we treat this appeal as including an application for leave to appeal and grant such application nunc pro tunc (see, Bohen v. Auerbach, 51 A.D.2d 542). Accordingly, the order of Family Court should be modified to vacate the determination of custody.
We have examined respondent's other contentions and find them to be without merit.