I dissent and would affirm.
The facts have been fairly and adequately set forth in the majority opinion and need not be repeated here in this most difficult case. When the case was before us on a prior occasion we found the record lacking in evidence that petitioner is “ fit, competent and able to duly maintain, support and educate ’ ’ the child whose custody she now seeks (Social Services Law, § 383). We directed “ an expeditious new trial on the issue whether the best interests of the child dictate his return to petitioner as one fit, competent and able to support, educate and care for him” (33 A D 2d 83, 85). Unfortunately, an additional year has passed before the case is up again for review.
Since November, 1968, petitioner has been involved in litigation seeking the return of her child. There is no doubt that she voluntarily consented to adoption in May, 1968. The record indicates nevertheless that prior to adoption and after the lapse of but a few months, she sought to have her child returned. Unsuccessful in her efforts, she resorted to litigation. Had it been possible to finally resolve the matter at that time much heartache might have been avoided. We are not blind to the fact that with the passage of time the child might have earned a secure place in the affections of the proposed adoptive parents. Nor is there any indication that his material needs are not adequately met. However, if it be concluded that the natural mother is fit, competent and able to support and educate the child, precedence should be given her.
The record indicates that the petitioner mother is well educated, a steady worker, with undoubted love for the child she bore. Her relationship with the putative father seems to be the single lapse in a life otherwise lived in accordance with the approved moral code of the society of which she is a part. That it has continued is doubly unfortunate because the putative father has shown no inclination to share even a portion of the financial burden necessarily incurred in the rearing of a child. Nor does it appear that such counsel as a father might afford a son will be forthcoming from him.
Incompetency or fitness of the petitioner must revolve around a determination of whether the moral lapse, or deviation from *107the accepted norm, is in and of itself a disqualification, financial ability to maintain and support having been demonstrated. Moreover, the fact that the parents of petitioner who, through petitioner’s mother, have expressed a willingness to aid should that become necessary, operates as additional insurance for material needs. I would hold that the continuing relationship between the petitioner and the putative father, though neither approved nor sanctioned, should not automatically disqualify the petitioner, nor lead, irresistibly, to the conclusion that she is not a fit and competent person to maintain, educate and ■support the infant. As the natural mother, all things being equal, she should have a superior right to the infant.
While we speak always of the welfare of the child as of paramount concern, a decision that a mother should be permanently separated from her child is also a matter of grave concern for the court as a part of a total picture. The rearing of a child, whether it be by natural or adoptive parents, is not a venture the successful outcome of which is guaranteed. Nor can the outcome be predicted with certainty.
The happiness and well-being of a child can rarely be assured beyond the informed judgment of the moment. The status of illegitimacy in the past posed problems of considerable consequence, and were this case being decided 20 years ago, the conclusion I now propose might well have been different. Tolerance, a sympathetic understanding, though not universally achieved, a more rational acceptance of a person as an individual for what he is, rather than the circumstance of his birth, persuade me that this infant would not face an insuperable handicap in that respect if returned to petitioner. The risk of long-term psychological injury, while it exists, is minimal from the circumstances here evident. A similar risk exists in adoptions as well, though somewhat different in nature. Without in anywise detracting from the relationship of adoptive parent and child, the bond between natural mother and child is generally the strongest of all bonds. To a mother who wants to remain a parent, and has so demonstrated, and who by the evidence is fit, competent and able, I . would return this child. I therefore dissent and vote to affirm.
Capozzoli and Kupferman, JJ., concur with McNally, J., Stevens, P. J., dissents in an opinion, in which Nunez, J., concurs.
Judgment, Supreme Court, New York County, entered on November 16, 1970, reversed, on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the petition dismissed..