Crane v. Crane

81 A.D.2d 1033, 440 N.Y.S.2d 125, 1981 N.Y. App. Div. LEXIS 11795

Opinion

— Order unanimously affirmed, without costs. Memorandum: This is an appeal from a determination in a paternity case in which the putative father alleges paternity and the mother denies it. The child was born out of wedlock and the parties married each other one and one-half years later. They are now litigating a divorce. While we affirm the determination made by the trial court, we note that during the trial it erred in stating that a presumption of legitimacy was created under section 24 of the Domestic Relations Law. That statute creates such a presumption for a child where the parenthood of both mother and father, married prior or subsequent to the child’s birth, is conceded or proved. Here the parenthood of the father was the very issue of the lawsuit. The trial court further erred by ostensibly and incorrectly casting the burden of proof on appellant mother. Nonetheless, having reviewed the trial record, we are persuaded that respondent father succeeded in proving his paternity (see Jaynes v Tulla, 70 AD2d 680, 681). Thus, the finding made by the trial court that respondent is the natural father of the infant finds ample support in the record. The other issues raised by appellant mother on this appeal have been examined and found to be without merit. (Appeal from order of Erie County Family Court — visitation.) Present — Dillon, P. J., Cardamone, Doerr, Denman and Moule, JJ.