In the Matter of David C., A Child Alleged to be Neglected

In the Matter of David C., A Child Alleged to be Neglected. [MAJORITY] Order of the Family Court, New York County, dated November 4, 1976, unanimously modified, on the law and the facts, to vacate the determination of temporary custody, and such custody restored to the Commissioner of Social Services, without costs and without disbursements, and otherwise affirmed. We grant leave to appeal on this interlocutory matter. As a result of intense marital discord between the mother and the stepfather, the child is estranged from his mother (the natural father is deceased). With conflicting contentions that the child was neglected, a stipulation was entered into before Shainswit, J., in which the parties agreed that there be limited contact between any and all of them and the child. Among the parties are the Potruches, friends of the stepfather, to whom temporary custody was thereafter awarded by the Family Court. There was no need for the interlocutory determination on the simple technical question of custody. The [MAJORITY] normal care for the child was provided for in his attendance at school, etc., none of which is hereby disturbed, and pending a final hearing, temporary custody in the Commissioner of Social Services was a rational way of disposing of the matter. To award temporary custody pending the hearing only several weeks away, to friends of one of the parties was to unbalance the scale without any special needs of the child being shown. Under the circumstances, the Family Court Judge may wish to refer the hearing on this matter to another Judge. Concur—Markewich, J. P., Kupferman, Silver-man and Nunez, JJ.