WOODRUFF v. ADSIDE (2006)

 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 A.D.3d 907, 907-908, 779 N.Y.S.2d 384).   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 interest[s]” (Matter of Folsom v. Folsom, 12 A.D.3d 962, 962, 784 N.Y.S.2d 913 [internal quotation marks omitted];  see Matter of Glenn v. Glenn, 262 A.D.2d 885, 886-887, 692 N.Y.S.2d 520, lv. denied in part and dismissed in part 94 N.Y.2d 782, 700 N.Y.S.2d 418, 722 N.E.2d 498).   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 A.D.3d 1167, 1168, 796 N.Y.S.2d 498), 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 A.D.2d 843, 747 N.Y.S.2d 815;  Matter of Frandiego S., 270 A.D.2d 144, 714 N.Y.S.2d 658), and thus that contention is not properly before us.   We have considered respondent's remaining contentions and conclude that they are without merit.

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: