Opinion
318 CAF 17–01648
06-07-2019
In the Matter of Jesenia E. SANTOS, Petitioner-Respondent, v. Rashad MUHAMMED, Respondent-Appellant.
FREDERICK P. LESTER, PITTSFORD, FOR RESPONDENT–APPELLANT. MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CHELSEA L. PALMISANO OF COUNSEL), FOR PETITIONER–RESPONDENT. LISA J. MASLOW, ROCHESTER, ATTORNEY FOR THE CHILDREN.
FREDERICK P. LESTER, PITTSFORD, FOR RESPONDENT–APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CHELSEA L. PALMISANO OF COUNSEL), FOR PETITIONER–RESPONDENT.
LISA J. MASLOW, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that said appeal from the order insofar as it concerns visitation is unanimously dismissed and the order is affirmed without costs.Memorandum: In this custody proceeding pursuant to Family Court Act article 6, respondent father appeals from an order granting petitioner mother sole custody of the parties' children. At the time the mother filed the petition, the father was incarcerated pending trial on charges of rape in the second degree and predatory sexual assault against a child, which stemmed from the impregnation of the mother's teenage daughter from a previous marriage. When the custody order was entered, the father had been incarcerated for approximately eight months. Shortly thereafter, the father was convicted of those charges and sentenced to an indeterminate prison term of 20 years to life.
Preliminarily, we note that the father's contention that Family Court erred in failing to award him visitation with the children has been rendered moot by a subsequent order that, upon his petition, granted him visitation rights (see Matter of Jones v. Tucker, 125 A.D.3d 1273, 1273, 999 N.Y.S.2d 778 [4th Dept. 2015] ; Matter of Kirkpatrick v. Kirkpatrick, 117 A.D.3d 1575, 1576, 985 N.Y.S.2d 368 [4th Dept. 2014] ). We therefore dismiss the appeal from the instant order insofar as it concerns visitation.
Contrary to the father's further contention that the court erred in granting the mother sole custody of the children without conducting a hearing, it is well settled that "[n]o hearing is required upon a custody petition when the court possesses sufficient information to make a comprehensive assessment of the best interests of the children" ( Matter of Van Orman v. Van Orman, 19 A.D.3d 1167, 1168, 796 N.Y.S.2d 498 [4th Dept. 2005] ; see Matter of Cierra L.B. v. Richard L.R., 43 A.D.3d 1416, 1416, 842 N.Y.S.2d 664 [4th Dept. 2007] ; Matter of Stefanie A. v. Loral R.H., 41 A.D.3d 1310, 1310, 838 N.Y.S.2d 744 [4th Dept. 2007] ). Here, the father's incarceration rendered him "incapable of fulfilling the obligations of a custodial parent" ( Van Orman, 19 A.D.3d at 1168, 796 N.Y.S.2d 498 ), and we conclude that the court properly granted the mother sole custody of the children without conducting a hearing (see Stefanie A., 41 A.D.3d at 1310, 838 N.Y.S.2d 744 ; Van Orman, 19 A.D.3d at 1168, 796 N.Y.S.2d 498 ).