IN RE: DARRYL M. (2025)

Order, Family Court, Bronx County (Tamara Schwarzman, R.), entered on or about February 20, 2025, which, after a hearing, to the extent appealed from as limited by the briefs, granted sole legal and physical custody of the subject child to petitioner father, 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 best served by awarding sole legal and physical custody to the father with parenting time to the mother (see Matter of Tylaeya C. v. Karl S., 187 A.D.3d 402, 402, 132 N.Y.S.3d 14 [1st Dept. 2020];  Elkin v. Labis, 113 A.D.3d 419, 419, 979 N.Y.S.2d 20 [1st Dept. 2014]).  The father was the child's primary caretaker and provided for the child's daily needs, as well as his medical and educational needs (see Matter of Jamel W. v. Stacey J., 136 A.D.3d 552, 553, 26 N.Y.S.3d 30 [1st Dept. 2016]).  Thus, the father was able to provide a stable and loving home for the child, where he could thrive mentally, emotionally, and academically (see Matter of Nyron P. v. Giselle A., 155 A.D.3d 545, 545–546, 65 N.Y.S.3d 189 [1st Dept. 2017];  see also Matter of Dedon G. v. Zenhia G., 125 A.D.3d 419, 419–420, 2 N.Y.S.3d 119 [1st Dept. 2015]).

The mother, on the other hand, visited with the child only eight times since he started living with the father and maintained only sporadic contact with him by text message (see Matter of Paul D. v. Margarita O., 227 A.D.3d 439, 439–440, 210 N.Y.S.3d 404 [1st Dept. 2024]).  Although the mother asserted that her failure to regularly visit arose from the father's refusal to accommodate changes to her work schedule, the mother acknowledged that she neither notified the court of these changes nor petitioned the court for a revision to the visitation schedule.

In rendering its decision, Family Court properly considered the child's position, as stated by attorney for the child, that he wished to remain with the father (see Matter of Lillette T. v. Simone G., 231 A.D.3d 507, 508, 218 N.Y.S.3d 60 [1st Dept. 2024]).  The mother also failed to preserve her argument that Family Court failed to adequately consider the child's separation from his half-sibling.  In any event, the argument is unavailing.  Although keeping children together is an important factor for the court to consider, it is not “an absolute” requirement (Matter of Dedon G. v. Zenhia G., 125 A.D.3d 419, 420, 2 N.Y.S.3d 119 [1st Dept. 2015] [internal quotation marks omitted]).  The record also supports a finding that the mother's home is not appropriate for the child because she continues to live with her partner, who has a history of domestic violence against the child and with whom the child wishes to have no contact.