IN RE: MICHAEL P.T. (2008)

 We agree with respondent mother that Family Court erred in granting petitioner father's motion for summary judgment and awarding the father sole custody of the parties' two children without conducting a hearing, relying instead on the evidence previously adduced at a hearing pursuant to Family Court Act article 10 (Matter of Merrick T., 55 A.D.3d 1318, 866 N.Y.S.2d 839, 2008 WL 4447574 [Oct. 3, 2008];  see Matter of Jacqueline Sharon L. v. Pamela G., 26 A.D.3d 250, 810 N.Y.S.2d 143;   Matter of Anderson v. Sparks, 18 A.D.3d 656, 795 N.Y.S.2d 631).   Determinations affecting custody and visitation generally should be made following a full evidentiary hearing (see Matter of Kenneth M. v. Monique M., 48 A.D.3d 1174, 1174-1175, 851 N.Y.S.2d 315;  Matter of Smith v. Brown, 272 A.D.2d 993, 708 N.Y.S.2d 676) and, contrary to the father's contention, the doctrine of collateral estoppel does not preclude the mother from contesting the issues of custody and visitation herein.   Those issues in the context of this proceeding “are not identical to those of ․ neglect in the [prior] Family Court proceeding,” and the mother and the Ontario County Department of Social Services, the petitioner in the prior proceeding, “ do ‘not share actual or functional identity as parties' ” (Ralph M. v. Nancy M., 280 A.D.2d 995, 996, 721 N.Y.S.2d 192, quoting Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667, 657 N.Y.S.2d 581, 679 N.E.2d 1061).   We note that the court erred in relying upon Matter of Woodruff v. Adside, 26 A.D.3d 866, 809 N.Y.S.2d 754 in stating that, “[a]s a result of her determined neglect of the children” in the article 10 proceeding, the mother “was incapable of fulfilling the obligations of a custodial parent” and thus no hearing in this proceeding was required.   Among other distinguishing factors in Woodruff, the respondent mother in that case was incarcerated.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the cross petition is reinstated and the matter is remitted to Family Court, Seneca County, for a hearing on the amended petition and cross petition, and

It is further ORDERED that, pending a new determination, petitioner shall retain sole custody of the parties' children.

MEMORANDUM: