IN RE: Jasmine HALL (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.

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 A.D.2d 620, 744 N.Y.S.2d 873).   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 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145;  Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   Accordingly, the Family Court's determination should not be disturbed (see Matter of Licari v. Mulderig, 24 A.D.3d 444, 805 N.Y.S.2d 129).

The appellant's remaining contentions are without merit.