Bid Fails to Block Custody of Boy
Bid Fails to Block Custody of Boy
By KIRK JOHNSON
LEAD: An appellate judge in Manhattan strongly rejected a bid yesterday by Joel B. Steinberg and Hedda Nussbaum to prevent the biological mother of 17-month-old Mitchell Steinberg from taking custody of him.
An appellate judge in Manhattan strongly rejected a bid yesterday by Joel B. Steinberg and Hedda Nussbaum to prevent the biological mother of 17-month-old Mitchell Steinberg from taking custody of him.
The ruling cleared the way for the mother, Nicole Bridget Smigiel, 18, to take temporary custody of Mitchell at her parents' home in Massapequa Park, L.I., pending a final resolution of the case.
Miss Smigiel, carrying the wide-awake child in her arms, arrived home shortly after 8 P.M., accompanied by her father, Dennis Smigiel, and her mother, Graceann. ''Everybody, this is my baby, said Miss Smigiel, introducing him as Travis Christian. She was greeted with cheers and applause from a group of about 75 neighbors and friends.
Mr. Steinberg and Ms. Nussbaum, who had raised Mitchell since birth but who the authorities say apparently never adopted the boy, are charged with murder in the beating death this month of another child, 6-year-old Lisa Steinberg. They also face charges of neglect in their care of Mitchell.
''The infant Mitchell was found by police on Nov. 2 soaked in urine, his body encrusted with dirt,'' said the judge, Presiding Justice Francis T. Murphy of the Appellate Division of State Supreme Court in Manhattan, in his ruling. ''He was tethered by rope to a filthy playpen covered with cobwebs.''
The judge added, ''It does not lie in their mouths to question the custody of the child in its natural mother, who, the evidence shows, is fit to assume that custody.''
His ruling was, in effect, a refusal to intervene in the decision issued Wednesday by a Family Court judge. Miss Smigiel's lawyer, Anthony V. Barbiero, said the legal effort for her to obtain permanent custody would begin today in Nassau County with the filing of papers seeking to nullify documents that Miss Smigiel purportedly signed forfeiting the child after his birth in June 1986.
Mitchell's father, a college student who learned for the first time several weeks ago that he had a son, has agreed to help Miss Smigiel care for the child, Mr. Barbiero said.
''She has changed her life and treated this as a second chance,'' the lawyer told Justice Murphy.
A lawyer for Ms. Nussbaum, David J. Lansner, who led the effort to keep Mitchell in city foster care until a final custody decision could be made next year, said that his client would be bitterly disappointed by the decision but that it would not be appealed. Mr. Lansner argued that granting temporary custody to Miss Smigiel would ''skew'' the trial in the case since judges are usually reluctant to remove a child from family custody once it is granted.
''You think that would be in the best interest of the child?'' the judge asked Mr. Lansner at one point in the hearing. ''You're really saying it's not in your client's best interest, aren't you?''
Ms. Nussbaum, 45, a former book editor and author, was arrested with Mr. Steinberg at their apartment at 14 West 10th Street in Greenwich Village on Nov. 2 after medical workers and the police responded to a 911 call about a child who had stopped breathing.
Mr. Steinberg, a 46-year-old lawyer, was later indicted on murder and manslaughter charges in the death of Lisa, whose given name was Elizabeth.
Ms. Nussbaum, who is believed by prosecutors to have been beaten by Mr. Steinberg, was hospitalized after the arrest and is now in psychiatric care at the Columbia-Presbyterian Medical Center. Charges against her are to be presented to a grand jury next month.
Although a Family Court trial on the final custody of Mitchell is set for Jan. 13 in Manhattan, Mr. Barbiero said the trial could be pre-empted if the court effort in Nassau County succeeds.
He said he would seek to have the adoption consent documents for Mitchell declared invalid since the papers authorized the adoption by Mr. Steinberg and Ms. Nussbaum, who could not legally adopt the child in New York State because they are not married.