Opinion
June 5, 1992
Appeal from the Erie County Family Court, Dillon, J.
Present — Green, J.P., Pine, Balio, Boehm and Davis, JJ.
Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Family Court erred in determining that respondent was the father of a child born to petitioner, in awarding petitioner counsel fees and in awarding custody of the child to petitioner. One of the strongest and most persuasive presumptions in law is that a child born to a married woman is presumed to be fathered by her husband (see, Matter of Fay, 44 N.Y.2d 137, 142, appeal dismissed sub nom. Buck v. Hunter, 439 U.S. 1059, reh denied 440 U.S. 968). To rebut that presumption, access by the husband must be disproved by clear and convincing evidence (see, Ghaznavi v. Gordon, 163 A.D.2d 194, 195; Matter of Commissioner of Welfare of City of N.Y. v. Leroy C., 45 A.D.2d 963). Here, petitioner did not meet that burden. At the time of the child's birth, March 3, 1984, petitioner was living with and still married to her husband. In addition, during the period of the possible conception of the child, petitioner was having sexual relations with both respondent and her husband, from whom she was then separated. Petitioner also failed to rebut the presumption with the result of a properly administered blood test excluding the husband's paternity (see, Ghaznavi v. Gordon, supra, at 195). Because the order of filiation is reversed, petitioner is not entitled to counsel fees (see, Family Ct Act § 536).