IN RE: Brenda L. HERNANDEZ (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this Family Court Act article 6 proceeding, petitioner-respondent mother appeals from an order that, inter alia, modified the parties’ prior order of custody to provide that respondent-petitioner father have primary physical residency of the subject child for educational purposes and have residency of the child on school nights during the school year. We affirm.

Preliminarily, we note that the parties do not dispute that there has been a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior custody order is in the child's best interests (see generally Matter of Cooley v. Roloson, 201 A.D.3d 1299, 1299-1300, 158 N.Y.S.3d 703 [4th Dept. 2022]), inasmuch as they filed competing petitions alleging such a change in circumstances (see Matter of Muriel v. Muriel, 179 A.D.3d 1529, 1529, 118 N.Y.S.3d 861 [4th Dept. 2020]; Matter of Nordee v. Nordee, 170 A.D.3d 1636, 1636-1637, 94 N.Y.S.3d 900 [4th Dept. 2019], lv denied 33 N.Y.3d 909, 2019 WL 2588142 [2019]).

“Generally a court's determination regarding custody and visitation issues, based on its first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” (Matter of Warren v. Miller, 132 A.D.3d 1352, 1354, 17 N.Y.S.3d 535 [4th Dept. 2015] [internal quotation marks omitted]). Here, the mother repeatedly failed to ensure that the child arrived at school on time, despite the fact that, at the time, the mother did not work in the mornings on many of the days that the child was late. We conclude that there is a sound and substantial basis in the record to support Family Court's determination that it is in the child's best interests to modify the custody arrangement so that the child could remain “in the school district in which the [father] lived and to provide [the mother] with reduced parenting time during the school year and increased parenting time when school was not in session” (Matter of Verne v. Hamilton, 191 A.D.3d 1433, 1434, 138 N.Y.S.3d 431 [4th Dept. 2021]).