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Matter of McMillan v. McMillan

Appellate Division of the Supreme Court of New York, Second Department
Mar 27, 1989
148 A.D.2d 719 (N.Y. App. Div. 1989)

Opinion

March 27, 1989

Appeal from the Family Court, Rockland County (Bergerman, J.).


Ordered that the order dated March 6, 1987 is reversed, on the law, with costs, the petitioner's objection to the order of the Hearing Examiner which dismissed the petition is sustained, the petition is reinstated, the order of the Hearing Examiner is vacated, and the matter is remitted to the Family Court, Rockland County, for further proceedings consistent herewith.

The petitioner contends that the Hearing Examiner and the Family Court erred in dismissing the instant support proceeding on the ground that the paternity of the child was never established. We agree.

The parties' marriage subsequent to the birth of the child acted to define the child's lineage and to legitimize him, presumptively, within the dictates of Domestic Relations Law § 33 (1) (see, Matter of Cerone v. Cerone, 58 A.D.2d 602). Unless the respondent can offer proof to rebut such presumption, he must be held responsible for the support of the child (see, Matter of Cerone v. Cerone, supra).

Accordingly, the matter is remitted to the Family Court for a determination of the amount of support warranted by the facts and circumstances of this case. Mollen, P.J., Mangano, Thompson and Rubin, JJ., concur.


Summaries of

Matter of McMillan v. McMillan

Appellate Division of the Supreme Court of New York, Second Department
Mar 27, 1989
148 A.D.2d 719 (N.Y. App. Div. 1989)
Case details for

Matter of McMillan v. McMillan

Case Details

Full title:In the Matter of JANET McMILLAN, Appellant, v. CLIFTON J. McMILLAN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 27, 1989

Citations

148 A.D.2d 719 (N.Y. App. Div. 1989)
539 N.Y.S.2d 463