¶1We dissent.
¶2As stated by the Court of Appeals in Bennett v Jeffreys (40 NY2d 543), courts may inquire into the best interests of a child to determine custodial disposition only when there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, extended disruption of custody or other equivalent but extraordinary circumstances which would drastically affect the welfare of the child. Herein, there was no finding below that the mother abandoned or neglected her daughter nor that she was an unfit parent. The sole issue, then, is whether the court may invoke the decisional and statutory law applicable to the "best interest” test of a child’s welfare where, as here, the parent voluntarily surrenders her child, with the reservation that she may revoke the surrender, and, again as here, does in fact revoke it. In our view, the court not only may but should inquire into all the surrounding circumstances to determine how the best interests of the child should be protected, and the implied contractual right in the petitioner to have her child returned upon demand cannot prevent such a review. In matters involving the custody of children, courts must act as parens patriae and look at all the facts to determine what is in the best interests of the child.
¶3In reaching its conclusion that Kimberly should remain with the nonparent custodian, the Family Court relied upon the testimony of Dr. Mindell, a child psychiatrist who conducted interviews with petitioner, the foster mother and Kimberly, as well as an in camera interview with the nearly 14-*56year-old infant. Dr. Mindell testified that as of the date of the surrender both Kimberly and her mother were undergoing extreme emotional distress because of the husband-father’s death; that the child exhibited behavioral difficulties evidenced by bed wetting, erratic attendance at school, poor grades, temper tantrums, recurring nightmares, acts of disobedience and two episodes of self-inflicted injury. These behavioral difficulties, in the doctor’s view, have been largely alleviated in the 18 months that Kimberly has resided in the foster home. Her attendance at school is good, her grades have advanced from failing to an A-B level, the bed wetting has stopped along with the nightmares and Kimberly has developed a relationship with the foster family that is supportive of her needs. Dr. Mindell further testified that while petitioner was not a neglectful mother, her desire to have her daughter returned was premised more on her own personal needs than those of the child. Next, Kimberly, now almost 14 years old, expressed a desire to remain where she is.
¶4Dr. Mindell recommended that it would be in the best interest of Kimberly to remain in the foster home. However, both Dr. Mindell and the Family Court used the unfortunate phrase that leaving Kimberly in the foster home was "the least detrimental alternative available”. Such a standard implies that both competing interests are detrimental. If that were true under the facts of this case, a remittal would be required to inquire if the child should not be removed from the cusody of both the parent and nonparent. A child’s best interest is not controlled by whether a parent or nonparent would make a "better parent” (Bennett v Jeffreys, supra).Rather, the judgment of what is best for the child must rest on a consideration of whether the child is presently in the custody of the parent or the nonparent, the conditions that brought about the surrender of the child if custody is in the nonparent, the changes for the better, if any, since the surrender, the causes of the changes, the need or lack thereof for a continuation of the foster relationship and, as here, when the child is of an age to express an opinion, the view of the child (cf. Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196). Such considerations, however, do not dictate that the child’s custody be routinely awarded to the natural parent (Bennett v Jeffreys, supra.See, also, Matter of Benitez v Llano, 39 NY2d 758, 759). The continued stable custody of a child is the essential principle (cf. Matter of Ebert v Ebert, 38 *57NY2d 700; Obey v Degling, 37 NY2d 768; Dintruff v Mc-Greevy, 34 NY2d 887, all cited in Bennett v Jeffreys, supra),and if such an arrangement exists between a child and a nonparent at the time that status is challenged, only strong, compelling reasons can be the predicate for the interruption of such a custodial relationship.
¶5No such reasons are present in the case at bar. Clearly, Kimberly has improved markedly since residing in her present foster home. Not only have her interest in and grades at school improved but her behavioral difficulties have been ameliorated to a degree that permits an interpersonal relationship with schoolmates and others that is both healthy and indicative of growth. We feel that Kimberly’s best welfare is served by continuing her present placement, not because it is "the least detrimental alternative available” but, rather, because it is in Kimberly’s best interest. We have also considered the "letter” brief of the Law Guardian, wherein he expressed the view that the child’s interests would be best served by denying petitioner’s application. In so ruling, we are not unmindful of the mother. However, a parent’s right of parental primacy in matters of custody must give way to the best interests of the child. Further, there is no reason why the petitioning mother cannot see her daughter on a daily basis if she wishes and thereby encourage a healthy growth in their relationship.
¶6The order should be affirmed.
¶7Greenblott, J. P., and Kane, J., concur with Herlihy, J.; Mahoney and Larkin, JJ., dissent and vote to affirm in an opinion by Mahoney, J.
¶8Order reversed, on the law and the facts, with costs. Settle order on notice.