IN RE: TYRA H. also known as Tyra B. (2024)

Order, Family Court, New York County (Gigi N. Parris, J.), entered on or about October 24, 2023, which, after a fact-finding hearing, granted respondent father's petition for sole legal and physical custody of the parties’ child and denied petitioner mother's custody petition, unanimously affirmed, without costs.

There is a sound and substantial basis in the record for Family Court's determination that the child's best interests are served by awarding sole legal and physical custody to the father (see Matter of Everett [Basdeo M.], 211 A.D.3d 641, 642, 181 N.Y.S.3d 65 [1st Dept. 2022]).  The determination was based on evidence that while the child lived with the father for the past three years or more, the father had been the more proactive parent in meeting the educational and medical needs of the child, who is on the autism spectrum (see Matter of Jose R. v. Diomara L., 199 A.D.3d 428, 429, 153 N.Y.S.3d 854 [1st Dept. 2021], lv denied 37 N.Y.3d 904 [2021];  Matter of Daniel B. v. Selina T., 195 A.D.3d 484, 485, 145 N.Y.S.3d 334 [1st Dept. 2021]).  Furthermore, the father provided a stable home and maintained employment, and the paternal grandmother was a resource for the father and the child.

By contrast, mother had a limited role in the child's education, care, and development, and she showed less understanding of the child's special needs.  Throughout the proceedings, the mother remained unemployed and moved at least three times with her now husband, his two sons and their two infant children, and it was unclear that their living arrangement provided a proper sleeping space for the child (see Matter of Frederick A. v. Lisa C., 121 A.D.3d 495, 495, 994 N.Y.S.2d 115 [1st Dept. 2014]).

Family Court's determination that both parents were credible but that the father provided a more reliable account is entitled to deference (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]).  Moreover, the court was entitled to give weight to the attorney for the child's position that custody should be awarded to the father with provisions for parenting access with the mother (see Matter of Edward L. v. Jasmine M., 176 A.D.3d 436, 437, 107 N.Y.S.3d 668 [1st Dept. 2019];  Matter of Frederick A. 121 A.D.3d at 495, 994 N.Y.S.2d 115).

To the extent the mother asserts that the father has not complied with the terms of the custody and visitation order, the information regarding that assertion is outside the record and does not provide a basis for reversing the order or remanding to Family Court (see Matter of Brisard v. Brisard, 211 A.D.3d 838, 839, 179 N.Y.S.3d 765 [2d Dept. 2022], lv denied 39 N.Y.3d 910, 2023 WL 3011835 [2023];  Mendoza v. Plaza Homes, LLC, 55 A.D.3d 692, 692–693, 865 N.Y.S.2d 342 [2d Dept. 2008]).

We have considered the mother's remaining arguments and find them unavailing.