| Matter of Cierra L.B. v Richard L.R. |
| 2007 NY Slip Op 07226 [43 AD3d 1416] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Cierra L.B., Respondent, v Richard L.R.,Appellant. |
—[*1]
Appeal from an order of the Family Court, Chautauqua County (Willard W. Cass, J.H.O.),entered March 31, 2006 in a proceeding pursuant to Family Court Act article 6. The ordergranted petitioner sole custody of the parties' child.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by remitting the matter to Family Court, Chautauqua County, for a hearingin accordance with the memorandum and as modified the order is affirmed without costs.
Memorandum: 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 thecourt possesses sufficient information to make a comprehensive assessment of the best interestsof the child[ ]" (Matter of Van Orman vVan Orman, 19 AD3d 1167, 1168 [2005]). Respondent father was incarcerated whenthe mother commenced this proceeding and thus was incapable of fulfilling the obligations of acustodial parent (see Matter of Vann vHerson, 2 AD3d 910, 912 [2003]).
We further conclude, however, that the court erred in implicitly denying that part of thefather's petition seeking visitation without conducting a hearing. "It is generally presumed to bein a child's best interest to have visitation with his or her noncustodial parent and the fact that aparent is incarcerated will not, by itself, render visitation inappropriate" (Matter of Davis vDavis, 232 AD2d 773, 773 [1996]; see Matter of Thomas v Thomas, 277 AD2d 935[2000]). We therefore modify the order by remitting the matter to Family Court for a hearing todetermine whether visitation is in the best interests of the child. Present—Hurlbutt, J.P.,Martoche, Smith, Fahey and Pine, JJ.