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Matter of Christine VAN ORMAN, Petitioner-Respondent-Respondent, v. Albert VAN ORMAN, Respondent-Petitioner-Appellant.
Family Court properly granted the petition of petitioner-respondent mother (hereafter, petitioner) for sole custody of the parties' two children and dismissed the petition of respondent-petitioner father (hereafter, respondent) for custody and visitation without a hearing. At that time, respondent was incarcerated in New York and was also held upon a detainer issued from the Commonwealth of Massachusetts. No 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 (see Matter of Glenn v. Glenn, 262 A.D.2d 885, 887, 692 N.Y.S.2d 520, lv. dismissed in part and denied in part 94 N.Y.2d 782, 700 N.Y.S.2d 418, 722 N.E.2d 498; cf. Matter of Mills v. Sweeting, 278 A.D.2d 943, 944, 718 N.Y.S.2d 558). As a result of his incarceration, respondent was incapable of fulfilling the obligations of a custodial parent (see Matter of Vann v. Herson, 2 A.D.3d 910, 912, 768 N.Y.S.2d 44; Matter of Randy K. v. Evelyn ZZ., 263 A.D.2d 624, 624-625, 692 N.Y.S.2d 804). The court therefore properly dismissed respondent's petition, without prejudice to the right of respondent to refile when he is released from incarceration (see Randy K., 263 A.D.2d at 625, 692 N.Y.S.2d 804).
The court erred, however, in adding a condition that respondent provide proof that his mental health issues have stabilized prior to refiling. Petitioner's attorney did not move for dismissal upon that ground, and the court's oral decision granting petitioner's motion did not include such a condition. The inclusion of that condition in the written order is therefore in conflict with the court's decision and, “[w]here there is a conflict between an order and a decision, the decision controls” (Matter of Edward V., 204 A.D.2d 1060, 1061, 614 N.Y.S.2d 348). In addition, despite numerous allegations that respondent had mental health issues, there is no evidence in the record before us to support a determination that respondent suffered from a mental health condition that would prohibit him from obtaining custody of, or visitation with, his children. Thus, we modify the amended order accordingly to conform to the decision (see generally Matter of King v. King, 309 A.D.2d 1207, 1208, 765 N.Y.S.2d 119).
It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously modified on the law by vacating the condition that respondent provide proof that his mental health issues have stabilized prior to refiling a petition for custody and visitation and as modified the amended order is affirmed without costs.
MEMORANDUM:
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Decided: June 10, 2005
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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