De Arakie v. De Arakie

Order, Supreme Court, New York County (Leonard Cohen, J.), entered July 12, 1989, which denied plaintiff’s motion to modify a prior order of visitation, entered June 8, 1989, by the same court, in the underlying action for divorce, unanimously affirmed, without costs.

*347Plaintiff is seeking to have his two minor children returned to New York City pending a determination of the issue of custody by the court. The children currently live with the defendant in Palm Beach, Florida, and have lived there for more than two consecutive years. Plaintiff, a wealthy man, has residences in New York City and Palm Beach, Florida. The children have been attending a Conservative Jewish school in Florida and plaintiff urges that they must return to New York and attend a specific Orthodox Jewish school in Manhattan.

After many duplicative applications for custody and visitation brought by plaintiff between September 1988 and July 1989, which included 67 days of hearings, the court below refused to compel the children to return and reside in New York and attend religious school in New York.

The decision of Justice Cohen was based upon substantial evidence and constituted an exercise of sound discretion. We therefore do not disturb the order appealed (see, e.g., Matter of Wells v Wells, 145 AD2d 832). The record supports the conclusion that the children’s best interests are advanced by allowing them to remain in Palm Beach, Florida, with their mother, pending a determination of permanent custody (see, e.g., Schwartz v Schwartz, 91 AD2d 628). While the parties, during their marriage, may have indicated a desire to raise their children as Orthodox Jews, defendant’s decision to enroll the children in a Conservative Jewish school will not be interfered with by this court, since there is no evidence of a writing by the parties, either in a separation agreement, a stipulation or a court order, regarding the children’s religious upbringing (see, Stevenot v Stevenot, 133 AD2d 820). Concur— Carro, J. P., Kassal, Ellerin, Wallach and Rubin, JJ.