We have here a rather bizarre situation involving something euphemistically called “ family ” life in Greenwich Village in this city.
The appellant, seemingly never divorced from her husband, who is alive, has for some 20 years been living with one Bosoff, arid from time to time has been joined in the “ family ” life by various people in some kind of group relationship. One Jo Oppenheimer came to live with this “ family ”, and, because she had means, financed the purchase of a building in which they all lived. Jo had a child named David, now some 13 years of age, by Bosoff, and David lived in this building from birth until October, 1973. The appellant, who acted as the mother of them all, and who is now 51 and suffering from multiple sclerosis and in a wheelchair, had the relationship of foster mother to David (cf. Matter of Carla L., 45 A D 2d 375), and the natural mother Jo took the role of David’s older sister. David did not go to school and, to put it mildly, did not have a normal child’s environment or training.
In 1970, Jo Oppenheimer left the “ family ” and established a new life, although she continued helping to support the “family”. From time to time, she visited David, and finally obtained a writ of habeas corpus seeking David’s appearance in court for the purpose of establishing her custodial right to her natural son.
The appellant, contending that Jo might harm the child and was not competent to care for him, because of an alleged earlier attempt to assault him and also to kill him, refused to comply and produce David in court, and as á result she was held in civil contempt and incarcerated in the New York City Correctional Institute for Women at Bikers Island on October 8, 1973. On August 7,1974, she filed a pro se writ of habeas corpus, challenging her continued incarceration and was later released in her own recognizance pending a hearing. On November 7, 1974, the appellant’s writ was dismissed, and she was remanded to Bikers Island.
Rosoff was also incarcerated on a civil contempt citation, but his case is not now before us.
It is clear that initially appellant was deliberately contumacious in that she instructed her own natural son Micah, some 25 years of age, to take David away. She' contends that during *260her. release from prison between August and November she tried to communicate with Micah and has attempted to locate her “ sons ”, allegedly to no avail. The appellant agreed to give to Special Term information with respect to the names of parties with whom she had been in communication, etc., but only in camera, contending that Jo, if she had the information, would through private investigators cause difficulties for the people involved.
Special Term concluded that her testimony was evasive, and that she still had the power to obey the mandate of the court to produce David.
We are dealing with a situation where the appellant has been incarcerated for approximately one year, and where initially there can be no doubt that the incarceration was justified. The question is whether continued deprivation of freedom will or can serve any purpose, as against the basic right of the appellant not to be deprived of liberty without due process of law. (See Taylor v. Hayes, 418 U. S. 488, 500.) This case is not as clear as that in Pereira v. Pereira (35 N Y 2d 301) where a similar situation of concealment of a child was involved, nor is it like People ex rel. Valenti v. McCloskey (6 N Y 2d 390), where the New York State Commission of Investigation sought answers in connection with the so-called Apalachian “ meeting ” held in up-State New York, and where the charge of perjury and the application of criminal law rather than civil contempt was the proper sanction. Therefore, I would approach the matter differently. One should not be imprisoned for an indeterminate time. (See Judiciary Law, § 774.) There have been already three mandatory reviews of commitment. (Ibid., § 774, subd. 2.) The court in its discretion may make an order upon such terms as justice requires with respect thereto. (Ibid., § 775.)
This matter should be remanded to Special Term to formulate conditions for release of the appellant. Among other things, she can be directed to use her best efforts to communicate with her natural son Micah and "with others in her “ family ” to attempt to produce David or to disclose his whereabouts. Advertisements can be placed in the newspapers in her name. Whatever information she may have with respect to the matter should be fully revealed in the record, so that others may be in a position to attempt to discover the whereabouts of the child.
Further, it is the best interests of the child that are involved in this proceeding. It may be that Jo. Oppenheimer is hot a fit person to have custody. If so, the urgency of her action loses *261its force, and there may be less reason for the commitment of the appellant. A hearing should be held with respect thereto.
Incarceration should not be the panacea for this situation.
McGivern, P. J., Markewich and Lane, JJ., concur with Capozzoli, J.; Kupferman, J., dissents in an opinion.
Judgment, Supreme Court, New York County entered on November 7, 1974, affirmed, without costs and without disbursements.