Elizabeth A. P. v. Paul T. P. , 605 N.Y.S.2d 614 ( 1993 )

Order reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant appeals from an order denying his application to modify a 1990 judgment of divorce. He sought the modification to eliminate the statement in the divorce decree that the child, Matthew, is a child born of the marriage between the parties. Defendant presented HLA test results excluding him as Matthew’s father, as well as plaintiff’s admission that she may have had another sexual partner at the approximate time of Matthew’s conception.

While it is presumed that a child born during a marriage is the biological product of the marital union, the presumption may be rebutted by clear and convincing proof excluding the husband as the father or otherwise tending to disprove legitimacy (see, Que0al v Queal, 179 AD2d 1070). Neither public policy considerations nor equitable estoppel bars defendant from challenging paternity (see, Queal v Queal, supra).

We conclude, therefore, that Supreme Court erred in denying the application without conducting a hearing. We remit the matter for that purpose and direct that a Law Guardian be appointed to represent the interests of the child. If defendant can establish by clear and convincing proof that he is not the child’s father, the application to modify the divorce judgment should be granted.

All concur except Balio, J., who dissents and votes to affirm in the following Memorandum: