The Supreme Court's conclusion that custody in the plaintiff would serve the best interests of the children is supported by the evidence (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89). The plaintiff had been a full-time mother and the children's primary custodian. Although the parties were married in France, and the husband has decided to return there, they have lived in New York since early 1981 and their children were born and raised here.
The court properly sought to effectuate the French prenuptial agreement which required an equal division of assets (Domestic Relations Law § 236 [B] [5]). However, the judgment must be modified since the court awarded the defendant only a $9800 credit representing one-half of the marital funds taken by the plaintiff in anticipation of divorce. She conceded in testimony taking more than double that amount from money received from rental payments, as well as from that sent by her husband to reduce their mortgage. A hearing is necessary to determine the exact amount taken by her, including funds from the parties' joint bank account, which is subject to equal division.
Concur — Rosenberger, J.P., Ellerin, Kupferman and Rubin, JJ.