Woodruff v. Adside , 809 N.Y.S.2d 754 ( 2006 )

Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered July 21, 2004 in a proceeding pursuant to Family Court Act article 6. The order granted the petition for modification of an order of custody.

It is hereby ordered that said appeal insofar as it concerns the parties’ older child be and the same hereby is unanimously dismissed and the order is affirmed without costs.

Memorandum: Respondent mother appeals from an order modifying the parties’ existing custody arrangement by granting custody of the parties’ children to petitioner father, without prejudice to respondent to seek custody upon her release from incarceration. We note at the outset that the appeal is moot with respect to the parties’ older child because he reached the age of 18 during the pendency of this appeal (see Matter of Krest v Kawczynski, 9 AD3d 907, 907-908 [2004]). We conclude that Family Court did not abuse its discretion in granting custody of the parties’ younger child to petitioner without conducting a hearing. “A hearing is not required . . . when the information before the court enables it to undertake a comprehensive independent review of the [children’s] best interests]” (Matter of Folsom v Folsom, 12 AD3d 962, 963 [2004] [internal quotation marks omitted]; see Matter of Glenn v Glenn, 262 AD2d 885, 886-887 [1999], lv denied in part and dismissed in part 94 NY2d 782 [1999]). Here, “[a]s a result of [her] incarceration, respondent was incapable of fulfilling the obligations of a custodial parent” (Matter of Van Orman v Van Orman, 19 AD3d 1167, 1168 [2005]), and thus no hearing was required.

The further contention of respondent that she was denied her right to visitation is unpreserved for our review (see Matter of Beebe v Beebe, 298 AD2d 843 [2002]; Matter of Frandiego S., 270 AD2d 144 [2000]), and thus that contention is not properly before us. We have considered respondent’s remaining contentions and conclude that they are without merit. Present—Pigott, Jr., P.J., Hurlbutt, Gorski and Smith, JJ.