NEW YORK, NOV. 18 -- The mother of a 17-month-old boy, who was found in the apartment where 6-year-old Elizabeth Steinberg allegedly was beaten to death, was awarded temporary custody of her son.

Nicole Smigiel, 18, shook with sobs when Judge Jeffry H. Gallet ruled that the boy she gave up at birth should be returned to her. "He's my baby!" she said.

Gallet stayed his order until 5 p.m. Thursday to give lawyers for Hedda Nussbaum and Joel Steinberg a chance to appeal. Steinberg and Nussbaum -- who never legally adopted the two children, authorities said -- have been charged with killing Elizabeth and neglecting the boy who is called Mitchell.

The boy was found tied to a chair, sitting in his own excrement and drinking spoiled milk when police arrived Nov. 2 at the Greenwich Village apartment shared by Steinberg and Nussbaum.

Elizabeth, called Lisa, was comatose and died three days later. The boy was placed in foster care.

In explaining his decision, Gallet said, "I am not a big fan of foster care. If there is a good foster care resource and an equal family resource, I'm inclined to take the family resource."

Steinberg's attorney, David Gilman, said, "Nicole may be the mother, but she has not been the parent. We would suggest that a much more careful study be conducted" before the child is placed with her.

Elizabeth's natural mother, Michelle Launders, who gave the child up for adoption, won the right to bury the child. She has said she had wanted the girl to go to a Catholic family and had no idea that Steinberg would keep the child when he agreed to arrange an adoption.