Opinion
2005-00428.
June 6, 2006.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Klein, J.), dated December 14, 2004, which, after a hearing, granted custody of the two subject children to the mother.
Del Atwell, Montauk, N.Y., for appellant.
David L. Darwin, County Attorney, Goshen, N.Y. (Christine Foy-Stage of counsel), for respondent-respondent.
Richard S. Birnbaum, White Plains, N.Y., Law Guardian for the child.
Before: Schmidt, J.P., Spolzino, Fisher and Lifson, JJ., concur.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court properly awarded custody of the two subject children to the mother. Contrary to the father's contention, the mother was not required to show a change of circumstances warranting a change in custody, because the father no longer had custody of the children due to the children's placement with the Orange County Department of Social Services as a result of the father's incarceration ( cf. Matter of Winslow v. Lott, 295 AD2d 620). The evidence presented indicates that it was in the children's best interests to award custody to the mother rather than the father ( see Matter of Tropea v. Tropea, 87 NY2d 727, 739; Eschbach v. Eschbach, 56 NY2d 167, 171). Accordingly, the Family Court's determination should not be disturbed ( see Matter of Licari v. Mulderig, 24 AD3d 444).
The appellant's remaining contentions are without merit.