IN RE: CIERRA L.B.

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: CIERRA L.B., Petitioner-Respondent, v. RICHARD L.R., Respondent-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, FAHEY, AND PINE, JJ. David J. Pajak, Alden, for Respondent-Appellant.

 Family Court properly granted petitioner mother sole custody of the parties' child without conducting a hearing.  “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 child [ ]” (Matter of Van Orman v. Van Orman, 19 A.D.3d 1167, 1168, 796 N.Y.S.2d 498).   Respondent father was incarcerated when the mother commenced this proceeding and thus 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).

 We further conclude, however, that the court erred in implicitly denying that part of the father's petition seeking visitation without conducting a hearing.  “It is generally presumed to be in a child's best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate” (Matter of Davis v. Davis, 232 A.D.2d 773, 773, 648 N.Y.S.2d 742;  see Matter of Thomas v. Thomas, 277 A.D.2d 935, 715 N.Y.S.2d 818).   We therefore modify the order by remitting the matter to Family Court for a hearing to determine whether visitation is in the best interests of the child.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by remitting the matter to Family Court, Chautauqua County, for a hearing in accordance with the memorandum and as modified the order is affirmed without costs.

MEMORANDUM: