Nussbaum Withdraws Right to Boy

Nussbaum Withdraws Right to Boy

By ROBERT D. MCFADDEN

LEAD: Hedda Nussbaum said yesterday that she was surrendering all rights to custody of the 17-month-old boy she and Joel B. Steinberg had raised as Mitchell Steinberg. She said the child's place was with his biological mother, Nicole Smigiel.

Hedda Nussbaum said yesterday that she was surrendering all rights to custody of the 17-month-old boy she and Joel B. Steinberg had raised as Mitchell Steinberg. She said the child's place was with his biological mother, Nicole Smigiel.

''I have just made the most difficult decision of my life, and that is to stop fighting for Mitchell and to give up all my rights to him,'' Ms. Nussbaum said in a statement written at Columbia Presbyterian Medical Center and released by her lawyer. She and Mr. Steinberg have been charged with the abuse of Mitchell and the murder of a daughter they raised.

''Because of my love for Mitchell, I want what is best for him,'' the statement said. ''I fought to keep my rights to him because of my hope that I will one day be well enough to take care of him again.''

But she said she had concluded it would be ''a long time'' before she would be able to care for him, and that she was abandoning the custody fight ''to spare Mitchell any more anguish or disruption'' and because she believed Miss Smigiel ''will give him plenty of love.'' Biological Mother Overjoyed

Miss Smigiel, who obtained temporary custody of the boy she calls Travis Christian last Wednesday in a Family Court hearing in Manhattan, was overjoyed at the news, her mother, Graceann, said by telephone from their Massapequa Park, L.I., home.

The withdrawal of Ms. Nussbaum removed a major obstacle to efforts by Miss Smigiel, 18, to obtain permanent custody of the child, whom she surrendered at birth to Mr. Steinberg. It was unclear whether Mr. Steinberg would seek to block that custody.

Mr. Steinberg, 46, a lawyer, and Ms. Nussbaum, 45, a former author and editor of children's books, were arrested at their apartment in Greenwich Village on Nov. 2 after the police went there on a call about a child who had stopped breathing.

The authorities found 6-year-old Elizabeth Steinberg battered and comatose, and Mitchell soiled and tethered to a chair but unhurt. The boy was placed in foster care and the girl, known as Lisa, died three days later. The couple were then charged with murder and child abuse. 'From Behind My Tears'

Mr. Steinberg, who has been indicted, is being held without bail at Rikers Island. Ms. Nussbaum, who is believed to have been battered by him, is in hospital custody on a police charge but has not been indicted.

In Family Court last week, lawyers for Mr. Steinberg and Ms. Nussbaum strongly opposed Miss Smigiel's request for custody, arguing that she had surrendered the child voluntarily and had made no effort to see him since his birth.

While the couple did not claim to have formally adopted either child, New York law recognizes some rights for nonadoptive parents, and Ms. Nussbaum, in arguing against custody by Miss Smigiel, was seeking to preserve those rights, her lawyer, David J. Lansner, said yesterday.

After Judge Jeffry H. Gallet granted Miss Smigiel temporary custody, Ms. Nussbaum said, she saw the mother and child on television.

''From behind my tears,'' she said, ''I could see him smiling and her beaming with joy, and I was now glad he was no longer in foster care, but with his natural mother who, it seems, will give him plenty of love.''

Mr. Lansner, representing Ms. Nussbaum in the custody matter only, said she wrote her statement in her hospital room yesterday after agonizing through the weekend. He said there had been no direct contact between Ms. Nussbaum and Miss Smigiel.

Anticipating a long period of recovery from ''my physical ailments and the psychological suffering I've been going through,'' Ms. Nussbaum wrote, ''By the time I might be ready to care for him, he would have been in Nicole's custody for many months, and would have formed a strong love-attachment to her.'' Ms. Nussbaum added: ''It would be very painful for him to be subjected to a custody battle or to be taken from her then. One painful separation is enough in a child's life.

''I know the joy that Nicole has now and will have for years to come. I had that same joy for 16 months. I do not begrudge Nicole her newfound love. I do envy her, but wish her the best, which will be the best for Mitchell or Travis.

''I can only hope that one day Nicole will allow me to see him again.''