IN RE: EDWIN R. (2019)

Order, Family Court, Bronx County (Lynn M. Leopold, J.), entered on or about November 15, 2018, which granted petitioner father's petition for sole legal and physical custody of the subject children, and directed that visitation by respondent mother continue as mutually agreed upon by the parties, unanimously affirmed, without costs.

The hearing evidence presents a sound and substantial basis for the award of custody of the children to petitioner (see generally Matter of James Joseph M. v. Rosana R., 32 A.D.3d 725, 726, 821 N.Y.S.2d 168 [1st Dept. 2006], lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006]).

Respondent failed to present evidence to support her argument that the order continuing visitation based on the mutual agreement of the parties is improper because the parties cannot work together (see Matter of Samuel v. Sowers, 162 A.D.3d 674, 675, 78 N.Y.S.3d 231 [2d Dept. 2018]; Matter of Alleyne v. Cochran, 119 A.D.3d 1100, 1101–1102, 990 N.Y.S.2d 289 [3d Dept. 2014]). The hearing record demonstrates that petitioner has made the children available to respondent in person and by telephone, and petitioner testified that he intends to continue to ensure the children's access to their mother and her family. Should the parties be unable to reach a mutual agreement on visitation, either may file a petition to enforce or modify the order (see Samuel, 162 A.D.3d at 675, 78 N.Y.S.3d 231).

The court properly declined to permit respondent's child life specialist to testify in her “professional capacity” about how respondent had changed while participating in a supportive housing program because the witness was not an expert and could not opine on respondent's parental fitness (see Matter of Sara B., 41 A.D.3d 170, 171, 841 N.Y.S.2d 2 [1st Dept. 2007]). Respondent had agreed that the witness would limit her testimony to her relationship with respondent and the services respondent received, and respondent was permitted to testify about her own progress while residing in supportive housing (cf. Matter of Painter v. Painter, 211 A.D.2d 993, 995, 621 N.Y.S.2d 741 [3d Dept. 1995] [court improperly precluded proof of respondent's alleged interference with petitioner's visitation rights]; Matter of Thomson v. Battle, 99 A.D.3d 804, 806, 952 N.Y.S.2d 251 [2d Dept. 2012] [mother's due process rights were violated when she was not permitted to present any evidence] ).