IN RE: STACEY–ANN H.J. (2021)

Appeal from order, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about December 11, 2019, deemed appeal from final order, same court and Referee, entered on or about December 16, 2019 (CPLR 5520[c] ), which, inter alia, awarded petitioner mother sole legal and physical custody of the parties' two younger children, and, so considered, said final order unanimously affirmed, without costs.

The award of sole legal and physical custody of the subject children to petitioner has a sound and substantial basis in the record, which shows that the evidence of the children's best interests weighs in petitioner's favor (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982];  Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 985 N.Y.S.2d 28 [1st Dept. 2014] ).  The children have resided since their birth with petitioner, who has been their primary caretaker and source of financial support.  Moreover, notwithstanding respondent's acts of domestic violence against her, petitioner has fostered a relationship between respondent and the children (see Matter of Vasquez v. Ortiz, 77 A.D.3d 962, 909 N.Y.S.2d 155 [2d Dept. 2010] ).  By contrast, respondent's words and actions belie his claim that he would encourage a relationship between petitioner and the children.  The court properly considered respondent's acts of domestic violence against petitioner in the children's presence (see Domestic Relations Law § 240[1][a];  Matter of Julie v. Wills, 73 A.D.3d 777, 899 N.Y.S.2d 669 [2d Dept. 2010] ).  In addition, it is the children's preference to remain with petitioner (see Melissa C.D., 117 A.D.3d at 408, 985 N.Y.S.2d 28).

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