OPINION OF THE COURT

Rosenblatt, J.

In this child support proceeding, we hold that a man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature.

I.

In January 1996, Shondel J. gave birth to a daughter in Guyana, where she then resided, and in a birth registration document named Mark D. as the father. Shondel and Mark had dated the previous spring in Guyana and had sexual intercourse.

Although Mark was in New York when the child was born, he provided financial support for the child and returned to Guyana later in the year to see her. In a sworn statement, notarized by the Guyana Consul-General in New York in January 1996, Mark declared that he was “convinced” that he was the child’s father and accepted “all paternal responsibilities including child support.” In 1998 he signed a Guyana registry, stating that he was her father and authorizing the change of her last name to his. Mark named the child the primary beneficiary on his life insurance policy, identifying her as his daughter. He also sent Shondel money monthly for the child’s support from her birth until June 1999 and then less regularly through the summer of 2000.

In August 2000, Shondel commenced a Family Court Act article 5 proceeding alleging that Mark is the father and seeking orders of filiation and support. Initially, Mark did not contest paternity. On the contrary, in September 2000, when the child was 4V2 years old, Mark commenced a Family Court Act article 6 proceeding, seeking visitation. In his petition, he stated that he was the child’s father, and that he loved her and wished to “spend quality time with her on a regularly scheduled basis.”

In October 2000, however, when appearing before a Family Court hearing examiner to answer Shondel’s petition, Mark *325requested DNA testing. The hearing examiner ordered genetic marker tests, which revealed that Mark is not the child’s biological father. The hearing examiner then dismissed Shondel’s paternity petition, and Mark abandoned his petition for visitation, having severed his relationship with the child. Shondel objected to the hearing examiner’s order, expressing doubts about the laboratory tests and stating that she would be able to show that Mark had always recognized the child as his. Realizing that the hearing examiner had exceeded her authority in dismissing Shondel’s petition, Family Court sustained her objection and appointed a law guardian for the child.

In October 2001, the Law Guardian reported that Mark had acted as the father of the child, who in turn considered him her father. Family Court set the matter down for a trial on equitable estoppel and ordered another set of tests. A blood genetic marker test confirmed that Mark is not the child’s biological father.

At the estoppel trial, Family Court heard widely diverging testimony from Shondel and Mark. According to Shondel’s testimony, Mark spent time with her and the child when they traveled to the United States in 1996 and 1997, seeing them “every day” for about six weeks in the summer of 1997 in New York; continued to visit the child and take her out after his relationship with Shondel soured in 1998; bought the child toys, clothes and other gifts; took the child to meet his parents; told his family that she was his daughter; regularly spoke with the child by telephone; referred to himself as “daddy” when talking with the child; and visited the child “almost every other day” in August 1999 and “almost every other day” between the time Shondel and the child moved to New York in January 2000 and the commencement of this litigation.

Mark denied all of this, asserting that he had seen the child only four times since her birth; that he had not acknowledged the child as his; that he had not introduced the child to his family or friends as his child; that he had not sent the child birthday or Christmas gifts; and that he had never visited her. Mark testified that he twice asked Shondel to submit to a blood test to determine whether he was the father of her child. Shondel insisted that he did not.

Family Court believed Shondel “entirely” and found Mark’s testimony incredible. It ruled that Mark “held himself out as [the] child’s father, and behaved in every way as if he was the *326father, albeit a father who didn’t reside for a good part of the child’s life, in the same country.” These affirmed findings of Family Court have support in the record and are binding on this Court.

Family Court entered an order of filiation and awarded child support retroactive to the date Shondel commenced the Family Court proceeding. The Appellate Division affirmed, concluding that “Family Court properly determined that it was in the best interests of the subject child to equitably estop [Mark] from denying paternity” (6 AD3d 437 [2004]).1 We agree, based on our precedents, the affirmed findings of fact and the legislative recognition of paternity by estoppel.

II.

The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position (see generally Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).

New York courts have long applied the doctrine of estoppel in paternity and support proceedings. Our reason has been and continues to be the best interests of the child (Jean Maby H. v Joseph H., 246 AD2d 282, 285 [2d Dept 1998]; see generally Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5 [1983]).

Although it originated in case law, paternity by estoppel is now secured by statute in New York (see Family Ct Act § 418 [a]; § 532 [a]). For that reason, and contrary to Mark’s assertions, it is not for us to decide whether the doctrine has a rightful place in New York law. Clearly it does, in the absence of legislative repeal or a determination of unconstitutionality. Mark argues for the first time in this appeal that sections 418 (a) and 532 (a) are unconstitutional and deprive him of due process. As this claim was not raised in the courts below, we do not entertain it.

*327Equitable estoppel is gender neutral. In Matter of Sharon GG. v Duane HH. (63 NY2d 859 [1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an order of the Appellate Division dismissing a paternity petition in which a mother sought to compel her husband to submit to a blood test as a means of challenging his paternity. We agreed with the Appellate Division that the mother should be estopped. As that Court pointed out, the mother expressed no question about her child’s paternity until some 21h years after the child’s birth. She had held the child out as her husband’s, accepted his support for the child while she and her husband lived together and after they separated, and permitted her husband and child to form strong ties together.

Estoppel may also preclude a man who claims to be a child’s biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man. The rationale is that the child would be harmed by a determination that someone else is the biological father. For example, in Purificati v Paricos (154 AD2d 360 [2d Dept 1989]), a boy’s biological father who did not seek to establish his paternity until more than three years after the child’s birth, and who acquiesced as a relationship flourished between the boy and his mother’s former husband, was estopped from claiming paternity. The courts “impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship” (Matter of Baby Boy C., 84 NY2d 91, 102 n [1994]).

Finally, the Appellate Division has repeatedly concluded that a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity.2 Where a child justifiably relies on the representations of a man that he is her father with the result that she will be harmed by the man’s denial of paternity, the man may be estopped from asserting that denial.3

*328III.

Mark represented that he was the father of the child, and she justifiably relied on this representation, changing her position by forming a bond with him, to her ultimate detriment. He is therefore estopped from denying paternity.

Mark expressly represented that he was the father of Shondel’s child in the notarized sworn statement and in the Guyana registry in which he gave the child his name, as well as in the visitation petition filed with Family Court. Further, Mark held himself out as the child’s father, and behaved in every way as if he was the father. Mark and the child had a close relationship, in which he referred to himself as her “daddy,” and which involved regular telephone conversations, frequent visits when she and Mark were in the same city, and contact with his parents. Moreover, Mark named the child as the primary beneficiary on his life insurance policy and sent money monthly for the child’s support until June 1999 and then less regularly through the summer of 2000.

The record also establishes that the child justifiably relied on Mark’s representations, accepting and treating him as her father. The Law Guardian’s October 2001 oral report to Family Court on her interview with the child (conducted when she was 572 years old) concluded that she

“considers Mark [D.] to be her father. She enjoys spending time with him, she knew his name, she described what he looks like, different things about his appearance, she talked about some of the things they did together, she enjoyed the visits a lot, he brought her presents in the past, he took her out without the mother sometimes, there’s a picture album with pictures of [Mark] in it and she wanted me to express that she misses him and she wants to know when he’s going to come back to see her.”

In the best interests of the child, Family Court properly applied estoppel, to impose support obligations on Mark, after he left the child with the detrimental effects of a relationship in which she was misled into believing that he was her father. A mother who had perfect foresight and knew that her child’s relationship with a father figure would be severed when the child was 472 might well choose never to inform him of her child’s birth.

*329 TV.

Mark attacks the statutory basis for the application of paternity by estoppel. In 1990, the Legislature amended Family Court Act § 418 (a), which governs the procedures related to scientific testing of biological paternity in support proceedings, so as to read, in pertinent part:

“The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests ... to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman.” (Family Ct Act § 418 [a] [emphasis supplied]; see L 1990, ch 818, §12.)

Arguing that the statute is self-contradictory, Mark asserts that the law mandates scientific testing of biological paternity in support proceedings and then in the next sentence makes such tests discretionary. We view the statute differently.

By providing a limited “best interests of the child” exception to mandatory biological tests of disputed paternity, the statute requires Family Court to justify its refusal to order biological tests when paternity is in issue. Before the amendment, Family Court was authorized, but not required, to order biological tests, and the court did not have to justify its refusal to do so. Now, in a support proceeding in which paternity is disputed, Family Court must explain why it denies a motion for biological paternity testing. The court may deny testing based on “res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman,” if denial is in the best interests of the child.

It is true that a child in a support proceeding has an interest in finding out the identity of her biological father. But in many instances a child also has an interest — no less powerful — in maintaining her relationship with the man who led her to believe that he is her father. The 1990 amendment to Family Court Act § 418 (a) appropriately balances these interests in accordance with the primary purpose of the Family Court Act — to protect and promote the best interests of children.

*330The procedure contemplated by section 418 (a) is that Family Court should consider paternity by estoppel before it decides whether to test for biological paternity. Here, the process was inverted early in the proceeding. Instead of referring the matter to a Family Court judge, the hearing examiner ordered genetic marker tests of paternity when the parties appeared in October 2000. As a result, the child’s biological paternity had been addressed before Family Court conducted its trial on the issue of estoppel. Nevertheless, even though the tests had been conducted, Family Court was authorized to decide the estoppel issue.

V

In allowing a court to declare paternity irrespective of biological fatherhood, the Legislature made a deliberate policy choice that speaks directly to the case before us. The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. Situations vary, and the question whether extinguishing the relationship and its attendant obligations will disserve the child is one for Family Court based on the facts in each case. Here, Family Court found it to be in the best interests of the child that Mark be declared her father and the Appellate Division properly affirmed.

Asserting that the equities are with Mark, our dissenting colleagues argue that we do not acknowledge the fraud or misrepresentation exception to the doctrine of equitable estoppel. This argument is misplaced for three reasons. To begin with, the child is the party in whose favor estoppel is being applied and there can be no claim here that she was guilty of fraud or misrepresentation. Secondly, to the extent that it matters, we note that there is no evidence of fraud or willful misrepresentation even on Shondel’s part. It is not likely that she would have initiated paternity proceedings, with the predictable prospect of biological testing, if she expected tests to rule him out as the father. There is every reason to believe that she thought Mark was the biological father and that the tests would confirm her belief. Finally, the issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.

We appreciate the dissenters’ concern over applying estoppel to a case in which, as between Mark and Shondel, it was she *331who misrepresented Mark to be the father (even though she may have earnestly believed he was). The dissenters’ position, however, appears not to recognize that fatherhood by estoppel does not contemplate a contest between two adults to see who is the more innocent. The child is entirely innocent and by statute the party whose interests are paramount.

To the child, Mark represented himself as her father. The Legislature did not create an exception for men who take on the role of fatherhood based on the mother’s misrepresentation. That would eviscerate the statute and, with it, the child’s best interests. Under the enactment, the mother’s motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served.

Here, Family Court found, and the Appellate Division affirmed, that Mark represented himself to be the father and that the child’s best interests would be served by a declaration of fatherhood. Under our decisional law, and contrary to the dissenters’ suggestion, equitable estoppel does not require that Mark, to be estopped, necessarily knew that his representation was false. A party who, like Mark, does not realize that his representation was factually inaccurate may yet be estopped from denying that representation when someone else — here the child — justifiably relied on it to her detriment (see Romano v Metropolitan Life Ins. Co., 271 NY 288, 293-294 [1936]; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).

The dissenters cite Simcuski v Saeli (44 NY2d 442 [1978]), which holds that a defendant may be estopped to plead the statute of limitations after having wrongfully induced the plaintiff to refrain from filing a timely suit. Simcuski prevents defendants from profiting from their misconduct. It does not bear on estoppel as between a man and the child with whom he has formed a father-daughter relationship.

Our dissenting colleagues point out that Mark has renounced fatherhood and now has no relationship with the child. This state of affairs, however, does not preclude the application of estoppel. If it did, a man could defeat the statute simply by severing all ties with the child.

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A *332possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

G.B. Smith, J.

(dissenting). The issue in this case is whether an individual nonspouse who was falsely told he was the biological father of a child and who DNA tests show could not be the biological father can be equitably estopped from denying paternity. A man or woman is and should be responsible for the financial support of his or her own offspring. In some instances, this responsibility may be placed upon a nonbiological parent. The facts in this case do not justify such a result. Because the “best interests of the child” require more than financial support, and equitable estoppel should be applicable only to someone who engages in false conduct, I dissent.

In 1995, while on a trip to Georgetown, Guyana, respondent Mark D. met and engaged in sexual intercourse with the petitioner, Shondel J. Following his return to the United States, Shondel J. told respondent she was pregnant and he began financially supporting petitioner. In 1996, respondent signed documents submitted to the Guyanese Consul that declared him to be the father of the child. He claims that he did this in order for petitioner to travel to the United States and submit to a paternity test. Between 1996 and 2000, when petitioner moved to New York, Mark D. saw the child multiple times during two visits to Guyana and a visit to Chicago. In 1997, he named the child as a beneficiary on his life insurance policy.

In 2000, Shondel J. commenced a Family Court proceeding in New York to declare Mark D. the child’s father and to obtain an order of support. Family Court ordered DNA tests at Mark D.’s request and the DNA saliva swab test excluded paternity. In 2001, Family Court dismissed Shondel J.’s petition and she filed objections to the order of dismissal, alleging that the DNA test was erroneous. In November 2001, the results of a new blood test showed respondent was not the biological father. On August 8, 2002, in Family Court, Kings County, respondent was declared the child’s father on the verified petition originally filed by petitioner. The court stated:

*333“The essence of the paternity trial was really one of equitable estoppel, should [Mark D.] be estopped from denying paternity. . . . I do find the Petitioner to have been entirely credible, and with all due respect, except in one regard, [Mark D.] entirely incredible.

“I do believe that he had doubts, however, he didn’t act on them in the appropriate fashion, and as a result he held himself out as this child’s father, and behaved in every way as if he was the father, albeit a father who didn’t reside for a good part of the child’s life, in the same country.

“However, it’s clear to me that these families were involved with each other, involved with this child, that his parents and probably other friends and relatives and church members were aware of this relationship, were aware of this child ....

“I would assume that for the best — and hope that for the best interests of the child, that he could pick up where he left off, and accept this child wholeheartedly into his life, because the child certainly wants that, and really, what’s paramount here is what the child needs.”

On April 5, 2004, the Appellate Division, Second Department affirmed the Family Court’s order of filiation. On May 9, 2005, the Second Department dismissed respondent’s appeal from a Family Court order of retroactive child support, and affirmed an order of support against him.

The question here is not, as the majority suggests, whether equitable estoppel “has a rightful place in New York law” (majority op at 326) or in paternity proceedings. The statute makes clear that it does. The question is whether the elements of estoppel are present in this case. Equitable estoppel is a “defensive doctrine preventing one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped had induced another person to act in a certain way, with the result that the other person has been injured in some way” (Black’s Law Dictionary 571 [7th ed 1999]; see also Simcuski v Saeli, 44 NY2d 442, 449 [1978] [stating defendant may be equitably estopped “where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action” and plaintiff demonstrates reasonable reliance on *334defendant’s misrepresentations]). Once a party makes a prima facie showing of facts sufficient to support equitable estoppel in the paternity context, the opponent of equitable estoppel must demonstrate why estoppel should not be applied in the best interests of the child (see Matter of Sharon GG. v Duane HH., 95 AD2d 466 [3d Dept 1983], affd 63 NY2d 859 [1984]).

According to Family Court Act § 532 (a), which is substantially similar in language to Family Court Act § 418 (a):

“The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court’s own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for *335the support of a child pursuant to this article and article four of this act” (emphasis added).1

The majority posits that once Shondel J. claimed Mark D. was the father and made a showing (visits, support, sworn statements), it was respondent’s burden to show equitable estoppel should not be applied since it would not be in the best interests of the child. The facts are not sufficient to support equitable estoppel. While Mark D. financially supported the child and made time to visit her, he has not (in the language of Black’s Law Dictionary) “tak[e]n unfair advantage” or been guilty of “false language or conduct”; he has not (in the language of our decision in Simcuski) committed any “fraud, misrepresentations or deception.” Thus an essential element of equitable estoppel does not exist.

The record is clear that Shondel J. misrepresented the paternity of the child for years and Mark D. relied on this information in good faith. There is no evidence that Mark D. gained any advantage from holding himself out as the child’s father. Thus the majority’s decision applies estoppel against a completely innocent litigant who gained no benefit from the conduct on which the estoppel is based — a holding without precedent, in the research undertaken here, in this Court’s decisions. Mark D. is being required to support this child through payments of $12,858 in arrearage (as of October 2003) and $78 per week, in lieu of providing that support to his own children and his wife.

Moreover, this is a poor case for abandoning the traditional elements of estoppel. The balance of equities is in Mark D.’s favor. Contrary to the majority’s view (majority op at 330), there is strong evidence of “fraud or willful misrepresentation” by Shondel J. She not only told Mark D. that the child was his, she swore in Family Court that she had sexual relations with no other man during the relevant time period — testimony proven by DNA tests to be false. Perhaps more important, this is not a case where a child lived for years with, and was brought up by, a man she had always thought was her father (cf. Matter of Diana E. v Angel M., 20 AD3d 370 [2005]). At the time of the paternity proceeding, the child had lived most of her life in a different country from Mark D., and their relationship was primarily on the telephone. This is a case in which this Court *336should remember “the rightful reluctance of courts in a society valuing freedom of association to impose a personal relationship upon an unwilling party,” a consideration that applies with special force to “the power of the State to force a parent-child relationship” (Matter of Baby Boy C., 84 NY2d 91, 101, 102 [1994]).

The majority’s ruling allows disestablishment of paternity if a presumed father acts promptly but does not allow for an exception for those who have acted in reliance on a misrepresentation or a fraud. The balance of equities should rarely favor continuing such misrepresentation or fraud. To hold as the majority does would reward a presumed father who takes no role in a child’s life until a DNA test makes it official or a mother who obtains paternal obligations through fraud. As the Massachusetts Supreme Judicial Court wrote in A.R. v C.R.:

“We would proceed with caution, as other courts have, in imposing a duty of support on a person who has not adopted a child, is not the child’s natural parent, but has undertaken voluntarily to support the child and to act as a parent. In most instances, such conduct should be encouraged as a matter of public policy. The obligation to support a child primarily rests with the natural parents, and one who undertakes that task without any duty to do so generally should not be punished if he or she should abandon it. On the other hand, a husband who for years acts as a father to a child born to the wife, supports that child, and holds himself out as the father to the child and to the world, may be obliged to continue to support the child when he, for the first time, renounces his apparent paternity in an attempt to avoid court-imposed support obligations. It may be relevant, in deciding whether reliance was detrimental, to know whether there once was an opportunity to pursue the natural father that is now lost” (411 Mass 570, 575, 583 NE2d 840, 843-844 [1992] [citations omitted and emphasis added]).

With this decision, this Court supports a public policy that says a man should never take on a parental role unless he wants to be unconditionally responsible for the child’s financial support.

Finally, it is not in the best interests of the child in this matter that the order of filiation and order of support be affirmed. *337The Law Guardian concedes that Mark D.’s contributions to this child’s life will only be financial. He has had no contact with the child since March 2000. Unlike Matter of Sharon GG., where an estranged husband fought to keep his parental rights, in this matter we have a man fighting to divorce his financial interests from petitioner and her child. While it was in the best interests of the child in Sharon GG. to maintain a relationship with an estranged husband who had filled the role of father in every way, it should not be said here that it is in the best interests of a child to have an order of filiation declare respondent to be her father, a man, who in addition to having no biological tie, has no interest in continuing a relationship with her or her mother.2

Accordingly, I dissent.

Chief Judge Kaye and Judges Cipakick, Gkaffeo and Read concur with Judge Rosenblatt; Judge G.B. Smith dissents in a separate opinion in which Judge R.S. Smith concurs.

Order affirmed, without costs.

OPINION OF THE COURT

Abdtjs-Salaam, J.

These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991])—namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their “established relationship with the child” *14(77 NY2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a). We agree that, in light of more recently delineated legal principles, the definition .of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.

L

Matter of Brooke S.B. v Elizabeth A.C.C.

Petitioner and respondent entered into a relationship in 2006 and, one year later, announced their engagement.1 At the time, however, this was a purely symbolic gesture; same-sex couples could not legally marry in New York. Petitioner and respondent lacked the resources to travel to another jurisdiction to enter into a legal arrangement comparable to marriage, and it was then unclear whether New York would recognize an out-of-state same-sex union.

Shortly thereafter, the couple jointly decided to have a child and agreed that respondent would carry the child. In 2008, respondent became pregnant through artificial insemination. During respondent’s pregnancy, petitioner regularly attended prenatal doctor’s appointments, remained involved in respondent’s care, and joined respondent in the emergency room when she had a complication during the pregnancy. Respondent went into labor in June 2009. Petitioner stayed by her side and, when the subject child, a baby boy, was born, petitioner cut the umbilical cord. The couple gave the child petitioner’s last name.

The parties continued to live together with the child and raised him jointly, sharing in all major parental responsibilities. Petitioner stayed at home with the child for a year while respondent returned to work. The child referred to petitioner as “Mama B.”

*15In 2010, the parties ended their relationship. Initially, respondent permitted petitioner regular visits with the child. In late 2012, however, petitioner’s relationship with respondent deteriorated and, in or about July 2013, respondent effectively terminated petitioner’s contact with the child.

Subsequently, petitioner commenced this proceeding seeking joint custody of the child and regular visitation. Family Court appointed an attorney for the child. That attorney determined that the child’s best interests would be served by allowing regular visitation with petitioner.

Respondent moved to dismiss the petition, asserting that petitioner lacked standing to seek visitation or custody under Domestic Relations Law § 70 as interpreted in Alison D. because, in the absence of a biological or adoptive connection to the child, petitioner was not a “parent” within the meaning of the statute. Petitioner and the attorney for the child opposed the motion, contending that, in light of the legislature’s enactment of the Marriage Equality Act (see L 2011, ch 95; Domestic Relations Law § 10-a) and other changes in the law, Alison D. should no longer be followed. They further argued that petitioner’s long-standing parental relationship with the child conferred standing to seek custody and visitation under principles of equitable estoppel.

After hearing argument on the motion, Family Court dismissed the petition. While commenting on the “heartbreaking” nature of the case, Family Court noted that petitioner did not adopt the child and therefore granted respondent’s motion to dismiss on constraint of Alison D. The attorney for the child appealed.2

The Appellate Division unanimously affirmed (see 129 AD3d 1578, 1578-1579 [4th Dept 2015]). The Court concluded that, because petitioner had not married respondent, had not adopted the child, and had no biological relationship to the child, Alison D. prohibited Family Court from ruling that petitioner had standing to seek custody or visitation (see id. at 1579). We granted the attorney for the child leave to appeal (see 26 NY3d 901 [2015]).

Matter of Estrellita A. v Jennifer L.D.

Petitioner and respondent entered into a relationship in 2003 and moved in together later that year. In 2007, petitioner and *16respondent registered as domestic partners, and thereafter, they agreed to have a child. The couple jointly decided that respondent would bear the child and that the donor should share petitioner’s ethnicity. In February 2008, respondent became pregnant through artificial insemination. During the pregnancy, petitioner attended medical appointments with respondent. In November 2008, respondent gave birth to a baby girl. Petitioner cut the umbilical cord. The couple agreed that the child should call respondent “Mommy” and petitioner “Mama.”

The child resided with the couple in their home and, over the next three years, the parties shared a complete range of parental responsibilities. However, in May 2012, petitioner and respondent ended their relationship, and petitioner moved out in September 2012. Afterward, petitioner continued to have contact with the child.

In October 2012, respondent commenced a proceeding in Family Court seeking child support from petitioner. Petitioner denied liability. While the support case was pending, petitioner filed a petition in Family Court that, as later amended, sought visitation with the child. The court appointed an attorney for the child.

After a hearing, Family Court granted respondent’s child support petition and remanded the matter to a support magistrate to determine petitioner’s support obligation. The court held that “the uncontroverted facts establish [ed] ” that petitioner was “a parent” to the child and, as such, “chargeable with the support of the child.” Petitioner then amended her visitation petition to indicate that she “ha[d] been adjudicated the parent” of the child and therefore was a legal parent for visitation purposes.

Thereafter, respondent moved to dismiss the visitation petition on the ground that petitioner did not have standing to seek custody or visitation under Domestic Relations Law § 70 as interpreted in Alison D. The attorney for the child supported visitation and opposed respondent’s motion to dismiss. Petitioner also opposed respondent’s motion to dismiss, asserting that Alison D. and our decision in Debra H. v Janice R. (14 NY3d 576 [2010]) did not foreclose a finding of standing based on judicial estoppel, as the prior judgment in the support proceeding determined that petitioner was a legal parent to the subject child. Respondent contended that the prerequisites for judicial estoppel had not been met.

*17Family Court denied respondent’s motion to dismiss the visitation petition (see 40 Misc 3d 219, 219-225 [Fam Ct, Suffolk County 2013]). Citing Alison D. and Debra H., the court acknowledged that petitioner did not have standing to petition for visitation based on equitable estoppel or her general status as a de facto parent (see id. at 225). However, given respondent’s successful support petition, the court concluded that the doctrine of judicial estoppel conferred standing on petitioner to request visitation with the child (see id. at 225). The court distinguished Alison D. and Debra H., reasoning that, in those cases, the Court “did not address the situation . . . where one party has asserted inconsistent positions” (id.). Here, in light of respondent’s initial claim that petitioner was the child’s legal parent in the support proceeding, the court “ma[de] a finding that respondent [wa]s judicially estopped from asserting that petitioner [wa]s not a parent based upon her sworn petition and testimony in a prior court proceeding where she took a different position because her interest in that case was different” (id.). Respondent filed an interlocutory appeal, which was dismissed by the Appellate Division.

Subsequently, Family Court held a hearing on the petition. The court found that petitioner’s regular visitation and consultation on matters of import with respect to the child would serve the child’s best interests. Respondent appealed.

Family Court’s order was unanimously affirmed (see 123 AD3d 1023, 1023-1027 [2d Dept 2014]). The Appellate Division determined that, while Domestic Relations Law § 70, as interpreted in Alison D., confers standing to seek custody or visitation only on a biological or adoptive parent, Alison D. does not preclude recognition of standing based upon the doctrine of judicial estoppel. Under that doctrine, the Court found, “a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed” (id. at 1026 [internal quotation marks and citations omitted]). The Appellate Division agreed with Family Court that the requirements of judicial estoppel had been met: respondent’s position in the support proceeding was inconsistent with her position in the visitation proceeding; respondent had won a favorable judgment based on her earlier position; and allowing respondent to maintain an inconsistent position in the visitation proceeding would prejudice petitioner (see id. at 1026). Accordingly, the *18Appellate Division concluded that respondent was judicially-estopped from denying petitioner’s standing as a “parent” of the child within the meaning of Domestic Relations Law § 70 (see id. at 1026-1027). We granted respondent leave to appeal (see 26 NY3d 901 [2015]).

IL

Domestic Relations Law § 70 provides:

“Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly” (Domestic Relations Law § 70 [a] [emphases added]).

Only a “parent” may petition for custody or visitation under Domestic Relations Law § 70, yet the statute does not define that critical term, leaving it to be defined by the courts.3

In Alison D. (77 NY2d 651), we supplied a definition. In that case, Alison D. and Virginia M. were in a long-term relationship and decided to have a child (see Alison D., 77 NY2d at 655). They agreed that Virginia M. would carry the baby and that they would jointly raise the child, sharing parenting responsibilities (see id.). After the child was born, Alison D. acted as a parent in all major respects, providing financial, emotional and practical support (see id.). Even after the couple ended their relationship and moved out of their shared home, Alison D. continued to regularly visit the child until he was about six years old, at which point Virginia M. terminated contact between them (see id.).

*19Alison D. petitioned for visitation pursuant to Domestic Relations Law § 70 (see id. at 656). In support of the petition, Alison D. argued that, although Virginia M. was concededly a fit parent, Alison D. nonetheless had standing to seek visitation with the child (see id.). The lower courts dismissed Alison D.’s petition for lack of standing, ruling that only a biological parent— and not a de facto parent—is a legal “parent” with standing to seek visitation under Domestic Relations Law § 70 (see id.; see also Matter of Alison D. v Virginia M., 155 AD2d 11, 13-16 [2d Dept 1990]).

We affirmed the lower courts’ dismissal of Alison D.’s petition for lack of standing (see Alison D., 77 NY2d at 655, 657). We decided that the word “parent” in Domestic Relations Law § 70 should be interpreted to preclude standing for a de facto parent who, under a theory of equitable estoppel, might otherwise be recognized as the child’s parent for visitation purposes (see id. at 656-657). Specifically, we held that “a biological stranger to a child who is properly in the custody of his biological mother” has no “standing to seek visitation with the child under Domestic Relations Law § 70” (id. at 654-655).

We rested our determination principally on the need to preserve the rights of biological parents (see id. at 656-657). Specifically, we reasoned that, “traditionally, in this State it is the child’s mother and father who, assuming fitness, have the right to the care and custody of their child” (id. at 656). We therefore determined that the statute should not be read to permit a de facto parent to seek visitation of a child in a manner that “would necessarily impair the parents’ right to custody and control” (id. at 656-657).

Additionally, we suggested that, because the legislature expressly allowed certain non-parents—namely, grandparents and siblings—to seek custody or visitation (see Domestic Relations Law §§ 71-72), it must have intended to exclude de facto parents or parents by estoppel (see Alison D., 77 NY2d at 657). And so, because Alison D. had no biological or adoptive connection to the subject child, she had no standing to seek visitation and “no right to petition the court to displace the choice made by this fit parent in deciding what is in the child’s best interests” (id.).

Judge Kaye dissented on the ground that a person who “stands in loco parentis” should have standing to seek visitation under Domestic Relations Law § 70 (see id. at 657-662 *20[Kaye, J., dissenting]). Observing that the Court’s decision would “fall[ ] hardest” on the millions of children raised in nontraditional families—including families headed by same-sex couples, unmarried opposite-sex couples, and stepparents— the dissent argued that the majority had “turn[ed] its back on a tradition of reading section 70 so as to promote the welfare of the children” (id. at 658-660). The dissent asserted that, because Domestic Relations Law § 70 did not define “parent”— and because the statute made express reference to the “best interest of the child”—the Court was free to craft a definition that accommodated the welfare of the child {id.). According to the dissent, well-established principles of equity—namely, “Supreme Court’s equitable powers that complement” Domestic Relations Law § 70—supplied jurisdiction to act out of “concern for the welfare of the child” (id. at 660; see Matter of Bachman v Mejias, 1 NY2d 575, 581 [1956]; Finlay v Finlay, 240 NY 429, 433-434 [1925]; Langerman v Langerman, 303 NY 465, 471 [1952]).

At the same time, Judge Kaye in her dissent recognized that

“there must be some limitation on who can petition for visitation. Domestic Relations Law § 70 specifies that the person must be the child’s ‘parent,’ and the law additionally recognizes certain rights of biological and legal parents. . . .

“It should be required that the relationship with the child came into being with the consent of the biological or legal parent” (Alison D., 77 NY2d at 661-662 [Kaye, J., dissenting] [citations omitted]).

The dissent also noted that a properly constituted test should likely include other factors as well, to ensure that all relevant interests are protected (see id. at 661-662 [Kaye, J., dissenting]). Judge Kaye further stated in the dissent that she would have remanded Alison D. so that the lower court could engage in a two-part inquiry: first, to determine whether Alison D. stood “in loco parentis” under whatever test the Court devised; and then, “if so, whether it is in the child’s best interest to allow her the visitation rights she claims” (id. at 662).

In 1991, same-sex partners could not marry in this state. Nor could a biological parent’s unmarried partner adopt the child. As a result, a partner in a same-sex relationship not biologically related to a child was entirely precluded from obtaining standing to seek custody or visitation of that child under our definition of “parent” supplied in Alison D.

*21Four years later, in Matter of Jacob (86 NY2d 651 [1995]), we had occasion to decide whether “the unmarried partner of a child’s biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, can become the child’s second parent by means of adoption” (id. at 656). We held that the adoptions sought in Matter of Jacob— “one by an unmarried heterosexual couple, the other by the lesbian partner of the child’s mother”—were “fully consistent with the adoption statute” {id.). We reasoned that, while the adoption statute “must be strictly construed,” our “primary loyalty must be to the statute’s legislative purpose—the child’s best interest” (id. at 657-658). The outcome in Matter of Jacob was to confer standing to seek custody or visitation upon unmarried, non-biological partners—including a partner in a same-sex relationship—who adopted the child, even under our restrictive definition of “parent” set forth in Alison D. (id. at 659).

Thereafter, in Matter of Shondel J. v Mark D. (7 NY3d 320 [2006]), we applied a similar analysis, holding that a “man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment” (id. at 324). We based our decision on “the best interests of the child,” emphasizing “[t]he potential damage to a child’s psyche caused by suddenly ending established parental support” (id. at 324, 330).4

Despite these intervening decisions that sought a means to take into account the best interests of the child in adoption and support proceedings, we declined to revisit Alison D. when confronted with a nearly identical situation almost 20 years later. Debra H., as did Alison D., involved an unmarried same-sex couple. Petitioner alleged that they agreed to have a child, and to that end, Janice R. was artificially inseminated and bore the child. Debra H. never adopted the child. After the couple ended their relationship, Debra H. petitioned for custody and visitation (Debra H., 14 NY3d at 586-588). We declined to expand the definition of “parent” for purposes of Domestic Rela*22tions Law § 70, noting that “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups” (id. at 593).

Nonetheless, in Debra H., we arrived at a different result than in Alison D. Ultimately, we invoked the common-law doctrine of comity to rule that, because the couple had entered into a civil union in Vermont prior to the child’s birth—and because the union afforded Debra H. parental status under Vermont law—her parental status should be recognized under New York law as well (see id. at 598-601). Seeing no obstacle in New York’s public policy or comity doctrine to the recognition of the non-biological mother’s standing, we declared that “New York will recognize parentage created by a civil union in Vermont,” thereby granting standing to Debra H. to petition for custody and visitation of the subject child (id. at 600-601).

In a separate discussion, we also “reaffirm [ed] our holding in Alison D.” (id. at 589). We acknowledged the apparent tension in our decision to authorize parentage by estoppel in the support context (see Shondel J., 7 NY3d 320) and yet deny it in the visitation and custody context (see Alison D., 77 NY2d 651), but we decided that this incongruity did not fatally undermine Alison D. (see Debra H., 14 NY3d at 592-593).

Chief Judge Lippman and Judge Ciparick concurred in the result, agreeing with the majority’s comity analysis but asserting that Alison D. should be overruled (see id. at 606-609 [Ciparick, J., concurring]). This concurrence asserted that Alison D. had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent (see id. at 606-607). Noting the inconsistency between Alison D. and the Court’s ruling in Shondel J., the concurrence concluded that “[sjupport obligations flow from parental rights; the duty to support and the rights of parentage go hand in hand and it is nonsensical to treat the two things as severable” (id. at 607). According to the concurrence, Supreme Court had “inherent equity powers and authority pursuant to Domestic Relations Law § 70 to determine who is a parent and what will serve the child’s best interests” (id. at 609). Echoing the dissent in Alison D., and “taking into consideration the social changes” that occurred since that decision, the concurrence called for a “flexible, multi-factored” approach to determine whether a parental relationship had been established (id. at 608).

A separate concurrence by Judge Smith in that case acknowledged the same social changes and proposed that, in the inter*23est of insuring that “each child begins life with two parents,” an appropriate test would focus on whether “a child is conceived through [artificial insemination] by one member of a same-sex couple living together, with the knowledge and consent of the other” (id. at 611-612). Judge Smith observed that “[e]ach of these couples made a commitment to bring a child into a two-parent family, and it is unfair to the children to let the commitment go unenforced” {id. at 611).

HH HH HH

We must now decide whether, as respondents claim, the doctrine of stare decisis warrants retention of the rule established in Alison D. Under stare decisis, a court’s decision on an issue of law should generally bind the court in future cases that present the same issue (see People v Rodriguez, 25 NY3d 238, 243 [2015]; People v Taylor, 9 NY3d 129, 148-149 [2007]). The doctrine “promotes predictability in the law, engenders reliance on our decisions, encourages judicial restraint and reassures the public that our decisions arise from a continuum of legal principle rather than the personal caprice of the members of this Court” (People v Peque, 22 NY3d 168, 194 [2013]). But in the rarest of cases, we may overrule a prior decision if an extraordinary combination of factors undermines the reasoning and practical viability of our prior decision (see People v Rudolph, 21 NY3d 497, 500-503 [2013]; see id. at 505-507 [Graffeo, J., concurring]; People v Reome, 15 NY3d 188, 191-195 [2010]; People v Feingold, 7 NY3d 288, 291-296 [2006]).

Long before our decision in Alison D., New York courts invoked their equitable powers to ensure that matters of custody, visitation and support were resolved in a manner that served the best interests of the child (see Finlay, 240 NY at 433; Wilcox v Wilcox, 14 NY 575, 578-579 [1856]; see generally Guardian Loan Co. v Early, 47 NY2d 515, 520 [1979]; People ex rel. Lemon v Supreme Ct. of State of N.Y., 245 NY 24, 28 [1927]; De Coppet v Cone, 199 NY 56, 63 [1910]). Consistent with these broad equitable powers, our courts have historically exercised their “inherent equity powers and authority” in order to determine “who is a parent and what will serve a child’s best interests” (Debra H., 14 NY3d at 609 [Ciparick, J., concurring]; see also NY Const, art VI, § 7 [a]).

Domestic Relations Law § 70 evolved in harmony with these equitable practices. The statute expanded in scope from a law narrowly conferring standing in custody and visitation matters *24upon a legally separated, resident “husband and wife” pair (L 1909, ch 19) to a broader measure granting standing to “either parent” without regard to separation (L 1964, ch 564). The legislature made many of these changes to conform to the courts’ preexisting equitable practices (see L 1964, ch 564, § 1; Mem of Joint Legis Comm on Matrimonial and Family Laws, Bill Jacket, L 1964, ch 564 at 6). Tellingly, the statute has never mentioned, much less purported to limit, the court’s equitable powers, and even after its original enactment, courts continued to employ principles of equity to grant custody, visitation or related extra-statutory relief (see People ex rel. Meredith v Meredith, 272 App Div 79, 82-90 [2d Dept 1947], affd 297 NY 692 [1947]; Matter of Rich v Kaminsky, 254 App Div 6, 7-9 [1st Dept 1938]; cf. Langerman, 303 NY at 471-472; Finlay, 240 NY at 430-434).

Departing from this tradition of invoking equity, in Alison D., we narrowly defined the term “parent,” thereby foreclosing “all inquiry into the child’s best interest” in custody and visitation cases involving parental figures who lacked biological or adoptive ties to the child (Alison D., 77 NY2d at 659 [Kaye, J., dissenting]). And, in the years that followed, lower courts applying Alison D. were “forced to . . . permanently sever strongly formed bonds between children and adults with whom they have parental relationships” (Debra H., 14 NY3d at 606 [Ciparick, J., concurring]). By “limiting their opportunity to maintain bonds that may be crucial to their development,” the rule of Alison D. has “fall[en] hardest on the children” (Alison D., 77 NY2d at 658 [Kaye, J., dissenting]).

As a result, in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term “parent.” Now, we find ourselves in a legal landscape wherein a non-biological, non-adoptive “parent” may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding (Shondel J., 7 NY3d 320), yet denied standing to seek custody or visitation (Alison D., 77 NY2d at 655). By creating a disparity in the support and custody contexts, Alison D. has created an inconsistency in the rights and obligations attendant to parenthood. Moreover, Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in *25Obergefell v Hodges (576 US —, 135 S Ct 2584 [2015]), which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.

Under the current legal framework, which emphasizes biology, it is impossible—without marriage or adoption—for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child (see Alison D., 77 NY2d at 656). By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.

The Supreme Court has emphasized the stigma suffered by the “hundreds of thousands of children [who] are presently being raised by [same-sex] couples” (Obergefell, 576 US at —, 135 S Ct at 2600-2601). By “fixing biology as the key to visitation rights” (Alison D., 77 NY2d at 657-658 [Kaye, J., dissenting]), the rule of Alison D. has inflicted disproportionate hardship on the growing number of nontraditional families across our state. At the time Alison D. was decided, estimates suggested that “more than 15.5 million children [did] not live with two biological parents, and that as many as 8 to 10 million children are born into families with a gay or lesbian parent” (id.). Demographic changes in the past 25 years have further transformed the elusive concept of the “average American family” (Troxel v Granville, 530 US 57, 63-64 [2000]); recent census statistics reflect the large number of same-sex couples residing in New York, and that many of New York’s same-sex couples are raising children who are related to only one partner by birth or adoption (see Gary J. Gates & Abigail M. Cooke, The Williams Institute, New York Census Snapshot: 2010 at 1-3).

Relatedly, legal commentators have taken issue with Alison D. for its negative impact on children. A growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure—such as a de facto parent—regardless of that figure’s biological or adoptive ties to the children (see Amanda Barfield, Note, The Intersection of Same-Sex and Stepparent Visitation, 23 JL & Pol’y 257, 259-260 [2014]; Ayelet Blecher-Prigat, Rethinking Visitation: From a Parental to a Relational Right, 16 Duke J Gender L & Pol’y 1, *267 [2009]; Suzanne B. Goldberg, Family Law Cases as Law Reform Litigation: Unrecognized Parents and the Story of Alison D. v Virginia M., 17 Colum J Gender & L 307 [2008]; Mary Ellen Gill, Note, Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, 56 Syracuse L Rev 481, 488-489 [2006]; Joseph G. Arsenault, Comment, “Family” but not “Parent”: The Same-Sex Coupling Jurisprudence of the New York Court of Appeals, 58 Alb L Rev 813, 834, 836 [1995]; see also brief for National Association of Social Workers as amicus curiae at 13-17 [collecting articles]).

We must, however, protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children (see Alison D., 77 NY2d at 656-657; Troxel v Granville, 530 US 57, 65 [2000]). For certainly, “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests,” and any infringement on that right “comes with an obvious cost” (Troxel, 530 US at 64-65). But here we do not consider whether to allow a third party to contest or infringe on those rights; rather, the issue is who qualifies as a “parent” with coequal rights. Nevertheless, the fundamental nature of those rights mandates caution in expanding the definition of that term and makes the element of consent of the biological or adoptive parent critical.

While “parents and families have fundamental liberty interests in preserving” intimate family-like bonds, “so, too, do children have these interests” (Troxel, 530 US at 88-89 [Stevens, J., dissenting]), which must also inform the definition of “parent,” a term so central to the life of a child. The “bright-line” rule of Alison D. promotes the laudable goals of certainty and predictability in the wake of domestic disruption (Debra H., 14 NY3d at 593-594). But bright lines cast a harsh light on any injustice and, as predicted by Judge Kaye, there is little doubt by whom that injustice has been most finely felt and most finely perceived (see Alison D., 77 NY2d at 658 [Kaye, J., dissenting]). We will no longer engage in the “deft legal maneuvering” necessary to read fairness into an overly-restrictive definition of “parent” that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles (see Debra H., 14 NY3d at 606-608 [Cipar-ick, J., concurring]). Accordingly, we overrule Alison D.

*27IV.

Our holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires us to specify the limited circumstances in which such a person has standing as a “parent” under Domestic Relations Law § 70 (see Alison D., 77 NY2d at 661 [Kaye, J., dissenting]; Troxel, 530 US at 67). Because of the fundamental rights to which biological and adoptive parents are undeniably entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be, as Judge Kaye acknowledged in her dissent in Alison D., appropriately narrow.

Petitioners and some of the amici urge that we endorse a functional test for standing, which has been employed in other jurisdictions that recognize parentage by estoppel in the custody and/or visitation context (see In re Custody of H.S.H-K., 193 Wis 2d 649, 694-695, 533 NW2d 419, 435-436 [1995] [visitation only]; see also Conover v Conover, 448 Md 548, 576-577, 141 A3d 31, 47-48 [2016] [collecting cases from other jurisdictions that have adopted the functional test in contexts of custody or visitation]). The functional test considers a variety of factors, many of which relate to the post-birth relationship between the putative parent and the child. Amicus Sanctuary for Families proposes a different test that hinges on whether petitioner can prove, by clear and convincing evidence, that a couple “jointly planned and explicitly agreed to the conception of a child with the intention of raising the child as co-parents” (brief for Sanctuary for Families as amicus curiae at 39).

Although the parties and amici disagree as to what test should be applied, they generally urge us to adopt a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital “parents” who are raising children. We reject the premise that we must now declare that one test would be appropriate for all situations, or that the proffered tests are the only options that should be considered.

Petitioners in the two cases before us have alleged that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. We hold that these allegations, if proved by clear and convincing evidence, are sufficient to establish standing. Because we necessarily decide these cases based on the facts presented to us, it would be premature for us to consider adopting a test for situations in which a couple *28did not enter into a pre-conception agreement. Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.

Inasmuch as the conception test applies here, we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement. We simply conclude that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Whether a partner without such an agreement can establish standing and, if so, what factors a petitioner must establish to achieve standing based on equitable estoppel are matters left for another day, upon a different record.

Additionally, we stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.

V.

We conclude that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law § 70 (a) in accordance with the test outlined above.

In Brooke S.B., our decision in Alison D. prevented the courts below from determining standing because the petitioner was not the biological or adoptive parent of the child. That decision no longer poses any obstacle to those courts’ consideration of standing by equitable estoppel here, if Brooke S.B. proves by clear and convincing evidence her allegation that a pre-conception agreement existed. Accordingly, in Brooke S.B., the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court for further proceedings in accordance with this opinion.

In Estrellita A., the courts below correctly resolved the question of standing by recognizing petitioner’s standing based on judicial estoppel. In the child support proceeding, respon*29dent obtained an order compelling petitioner to pay child support based on her successful argument that petitioner was a parent to the child. Respondent was therefore estopped from taking the inconsistent position that petitioner was not, in fact, a parent to the child for purposes of visitation. Under the circumstances presented here, Family Court properly invoked the doctrine of judicial estoppel to recognize petitioner’s standing to seek visitation as a “parent” under Domestic Relations Law § 70 (a). Accordingly, in Estrellita A., the order of the Appellate Division should be affirmed, without costs.

Pigott, J.

(concurring). While I agree with the application of judicial estoppel in Matter of Estrellita A. v Jennifer L.D., and that the Appellate Division’s decision in Matter of Brooke S.B. v Elizabeth A.C.C. should be reversed and the case remitted to Supreme Court for a hearing, I cannot join the majority’s opinion overruling Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]). The definition of “parent” that we applied in that case was consistent with the legislative history of Domestic Relations Law § 70 and the common law, and despite several opportunities to do so, the legislature has never altered our conclusion. Rather than craft a new definition to achieve a result the majority perceives as more just, I would retain the rule that parental status under New York law derives from marriage, biology or adoption and decide Brooke S.B. on the basis of extraordinary circumstances. As we have said before, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent” (Debra H. v Janice R., 14 NY3d 576, 596 [2010]).

It has long been the rule in this state that, absent extraordinary circumstances, only parents have the right to seek custody or visitation of a minor child (see Domestic Relations Law § 70 [a] [“Where a minor child is residing within this state, either parent may apply to the . . . court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court. . . may award the natural guardianship, charge and custody of such child to either parent”]). The legislature has not seen the need to define that term, and in the absence of a statutory definition, our Court has consistently interpreted it in the most obvious and colloquial sense to mean a child’s natural parents or parents by adoption (see e.g. People ex rel. Portnoy v Strasser, 303 NY 539, 542 [1952] [“No court can, for any but the gravest reasons, transfer a child from its *30natural parent to any other person”]; People ex rel. Kropp v Shepsky, 305 NY 465, 470 [1953]; see also Domestic Relations Law § 110 [defining adoption as a legal act whereby an adult acquires the rights and responsibilities of a parent with respect to the adoptee]). Thus, in Matter of Ronald FF. v Cindy GG., we held that a man who lacked biological or adoptive ties to a child born out of wedlock could not interfere with a fit biological mother’s right to determine who may associate with her child because he was not a “parent” within the meaning of Domestic Relations Law § 70 (70 NY2d 141, 142 [1987]).

We applied the same rule to a same-sex couple in Matter of Alison D. v Virginia M., holding that a biological stranger to a child who neither adopted the child nor married the child’s biological mother before the child’s birth lacked standing to seek visitation (77 NY2d 651, 656-657 [1991]). The petitioner in that case conceded she was not the child’s “parent” within the meaning of Domestic Relations Law § 70 but argued that her relationship with the child, as a nonparent, entitled her to seek visitation over the objection of the child’s indisputably fit biological mother. Framed in those terms, the answer was easy: the petitioner’s concession that she was not a parent of the child, coupled with the statutory language in Domestic Relations Law § 70 “giv[ing] parents the right to bring proceedings to ensure their proper exercise of [a child’s] care, custody and control,” deprived the petitioner of standing to seek visitation (id. at 657).

Notwithstanding the fact that it may be “beneficial to a child to have continued contact with a nonparent” in some cases (id.), we declined to expand the word “parent” in section 70 to include individuals like the petitioner who were admittedly nonparents but who had developed a close relationship with the child. Our reasoning was that, where the legislature had intended to allow other categories of persons to seek visitation, it had expressly conferred standing on those individuals and given courts the power to determine whether an award of visitation would be in the child’s best interest (see id.). Specifically, the legislature had previously provided that “[w]here circumstances show that conditions exist which equity would see fit to intervene,” a brother, sister or grandparent of a child may petition to have such child brought before the court to “make such directions as the best interest of the child may require, for visitation rights for such brother or sister [or grandparent or grandparents] in respect to such child” *31(Domestic Relations Law §§ 71, 72 [1]). The legislature had also codified the common-law marital presumption of legitimacy for children conceived by artificial reproduction, so that any child born to a married woman by means of artificial insemination was deemed the legitimate, birth child of both spouses (see Domestic Relations Law § 73 [1]). In the absence of further legislative action defining the term “parent” or giving other nonparents the right to petition for visitation, we determined that a non-biological, non-adoptive parent who had not married the child’s biological mother lacked standing under the law (77 NY2d at 657).

Our Court reaffirmed Alison D.’s core holding just six years ago in Debra H. v Janice R. (14 NY3d 576 [2010]). Confronting many of the same arguments petitioners raise in these appeals, we rejected the impulse to judicially enlarge the term “parent” beyond marriage, biology or adoption. We observed that in the nearly 20 years that had passed since our decision in Alison D., other states had legislatively expanded the class of individuals who may seek custody and/or visitation of a child (see id. at 596-597, citing Ind Code Ann §§ 31-17-2-8.5, 31-9-2-35.5; Colo Rev Stat Ann § 14-10-123; Tex Fam Code Ann § 102.003 [a] [9]; Minn Stat Ann § 257C.08 [4]; DC Code Ann § 16-831.01 [1]; Or Rev Stat Ann § 109.119 [1]; Wyo Stat Ann § 20-7-102 [a]). Our State had not—and has not, to this day. In the face of such legislative silence, we refused to undertake the kind of policy analysis reserved for the elected representatives of this State, who are better positioned to “conduct hearings and solicit comments from interested parties, evaluate the voluminous social science research in this area . . . , weigh the consequences of various proposals, and make the tradeoffs needed to fashion the rules that best serve the population of our state” (id. at 597).

The takeaway from Debra H. is that Alison D. didn’t break any new ground or retreat from a broader understanding of parenthood. It showed respect for the role of the legislature in defining who a parent is, and held, based on the legislative guidance before us, that the term was intended to include a child’s biological mother and father, a child’s adoptive parents, and, pursuant to a statute enacted in 1974, the spouse of a woman to whom a child was born by artificial insemination. Although many have complained that this standard “is formulaic, or too rigid, or out of step with the times” {id. at 594), such criticism is properly directed at the legislature, who *32in the 107 years since Domestic Relations Law § 70 was enacted has chosen not to amend that section or define the term “parent” to include persons who establish a loving parental bond with a child, though they lack a biological or adoptive tie.

To be sure, there was a time when our interpretation of “parent” put same-sex couples on unequal footing with their heterosexual counterparts. When Alison D. was decided, for example, it was impossible for both members of a same-sex couple to become the legal parents of a child born to one partner by artificial insemination, because same-sex couples were not permitted to marry or adopt. Our Court eventually held that the adoption statute permitted unmarried same-sex partners to obtain second-parent adoptions (see Matter of Jacob, 86 NY2d 651, 656 [1995]), but it was not until 2011 that the legislature put an end to all sex-based distinctions in the law (see Domestic Relations Law § 10-a).

The legislature’s passage of the Marriage Equality Act granted same-sex couples the right to marry and made clear that “[n]o government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage . . . shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex” (Domestic Relations Law § 10-a [2]). Having mandated gender neutrality with respect to every legal benefit and obligation arising from marriage, and eliminated every sex-based distinction in the law and common law, the legislature has formally declared its intention that “[s]ame-sex couples should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage” (L 2011, ch 95, § 2).

Same-sex couples are now afforded the same legal rights as heterosexual couples and are no longer barred from establishing the types of legal parent-child relationships that the law had previously disallowed. Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation (2-22 NY Civil Practice: Family Court Proceedings § 22.08 [1] [Matthew Bender]; Laura WW. v Peter WW., 51 AD3d 211, 217-218 [3d Dept 2008] [holding that a child born to a married woman is the legitimate child of both parties and that, absent evidence to the contrary, the spouse of the married woman is presumed *33to have consented to such status]; Matter of Kelly S. v Farah M., 139 AD3d 90, 103-104 [2d Dept 2016] [finding that the failure to strictly comply with the requirements of Domestic Relations Law § 73 did not preclude recognition of a biological mother’s former same-sex partner as a parent to the child conceived by artificial insemination during the couple’s domestic partnership]; Wendy G-M. v Erin G-M., 45 Misc 3d 574, 593 [Sup Ct, Monroe County 2014] [applying the marital presumption to a child born of a same-sex couple married in Connecticut]). And if two individuals of the same sex choose not to marry but later conceive a child by artificial insemination, the non-biological parent may now adopt the child through a second-parent adoption.

The Marriage Equality Act and Matter of Jacob have erased any obstacles to living within the rights and duties of the Domestic Relations Law. The corollary is, absent further legislative action, an unmarried individual who lacks a biological or adoptive connection to a child conceived after 2011 does not have standing under Domestic Relations Law § 70, regardless of gender or sexual orientation. Unlike the majority, I would leave it to the legislature to determine whether a broader category of persons should be permitted to seek custody or visitation under the law. I remain of the view, as I was in Debra H., that we should not “preempt our Legislature by sidestepping section 70 of the Domestic Relations Law as presently drafted and interpreted in Alison D. to create an additional category of parent . . . through the exercise of our common-law and equitable powers” (14 NY3d at 597).

I do agree, however, with the results the majority has reached in these cases. The Marriage Equality Act did not benefit the same-sex couples before us in these appeals, who entered into committed relationships and chose to rear children before they were permitted to exercise what our legislature and the Supreme Court of the United States have now declared a fundamental human right (see generally Obergefell v Hodges, 576 US —, 135 S Ct 2584 [2015]). That Brooke and Elizabeth did not have the same opportunity to marry one another before they decided to have a family means that the couple (and the child born to them through artificial insemination) did not receive the same legal protection our laws would have provided a child born to a heterosexual couple under similar circumstances. That is, the law did not presume—as it would have for a married heterosexual couple—that any child *34born to one of the women during their relationship was the legitimate child of both.

In my view, this inequality and the substantial changes in the law that have occurred since our decision in Debra H. constitute extraordinary circumstances that give these petitioners standing to seek visitation (see Ronald FF., 70 NY2d at 144-145 [barring the State from interfering with a parent’s “(fundamental) right ... to choose those with whom her child associates” unless it “shows some compelling State purpose which furthers the child’s best interest”]). Namely, each couple agreed to conceive a child by artificial insemination at a time when they were not allowed to marry in New York and intended to raise the child in the type of relationship the couples would have formalized by marriage had our State permitted them to exercise that fundamental human right. On the basis of these facts, I would remit the matter in Brooke S.B. to Supreme Court for a hearing to determine whether it would be in the child’s best interest to have regular visitation with petitioner. As the majority correctly concludes, the petitioner in Estrellita A. has standing by virtue of judicial estoppel (majority op at 29).

Matter of Brooke S.B. v Elizabeth A.C.C.: Order reversed, without costs, and matter remitted to Family Court, Chautauqua County, for further proceedings in accordance with the opinion herein.

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges Rivera, Stein and Garcia concur. Judge Pigott concurs in a separate concurring opinion. Judge Fahey taking no part.

Matter of Estrellita A. v Jennifer L.D.: Order affirmed, without costs.

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges Rivera, Stein and Garcia concur. Judge Pigott concurs in a separate concurring opinion. Judge Fahey taking no part.

*568OPINION OF THE COURT

Kristin Booth Glen, S.

This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent-child relationship can be protected in a transient, cross-border society. Answers implicate assisted reproductive technologies (ARTs) and an outdated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same-sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (DOMA) (1 USC § 7; 28 USC § 1738C, as added by Pub L 104-199, 110 US Stat 2419 [1996]). This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second parent adoption pursuant to Domestic Relations Law § 111 et.seq.

Facts

Ingrid A. is a Dutch citizen who works at the United Nations. Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm. Ingrid and Mona have been in a committed relationship for more than 11 years, and on December 24, 2004 they were legally married in the Netherlands.1 Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s *569Dutch-Italian ethnicity. The fertilized ovum was successfully implanted in Ingrid’s uterus, and in January 2008 she gave birth to Sebastian, with Mona at her side. A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent. Since then, Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them. Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Background

I. The Law of Parentage

At common law, parentage* *3 derived from two events, a child’s birth to its “mother,” and the mother’s marriage to a man. Children born out of wedlock had only one legal parent, their birth mother. Recognizing the many advantages that flowed to children from having two parents, legislatures enacted filiation or paternity proceedings to confer legal parentage on nonmarital biological/genetic fathers (see e.g. Hough v Light, 275 App Div 299 [1st Dept 1949]), a status which carries support and other obligations (Family Ct Act § 513). Similarly, adoption statutes established legal parentage for married couples who were biological/genetic strangers to a child (Domestic Relations Law § 110). Adoption also permitted an unrelated person, married to a child’s mother or father subsequent to the child’s birth, to attain “parental” rights, rather than functioning only as a stepparent. Over time, by legislative action and/or judicial construction, adoption became available to unmarried same-sex couples (Matter of Jacob, 86 NY2d 651 [1995]). The legislative purpose behind all these expansions of parentage has consistently been the best interests of the child, both economic (see e.g. Matter of L. Pamela P. v Frank S., 59 NY2d 1 [1983]) and psychological (e.g. Matter of Jacob, 86 NY2d at 658-659).

*570At the same time that statutorily created and defined parentage expanded, so also did ARTs unknown to the common law and unanticipated by legislatures that created adoption and filiation statutes (see e.g. Ami Jaeger, Parentage Issues in ARTS, in 2 Child Custody and Visitation Law and Practice § 11 A.03 [1983]). A child now may be the product of an ovum from one woman (the genetic mother) fertilized by the sperm of a man (the genetic father) who is or is not married to the woman who actually bears the child (the gestational mother). Where the gestational mother, who may also be the genetic mother, is married, her husband is deemed to be the child’s father whether or not he is the genetic father (see e.g. John Lawrence Hill, What Does It Mean to be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 NYU L Rev 353, 372-373 [1991]).4

These physiological possibilities, combined with the inadequacy of preexisting legal frameworks, have generated a vast and confusing landscape involving controversies over “surrogacy,”5 6“ownership” rights to frozen embryos (Kass v Kass, 91 NY2d 554 [1998]), fertility clinic errors (Perry-Rogers v Fasano, 276 AD2d 67 [1st Dept 2000]), and custody and visitation disputes between genetic and gestational mothers (e.g. K.M. v E.G., 37 Cal 4th 130, 117 P3d 673 [2005], supra [previously cohabiting domestic partners]; Johnson v Calvert,6 5 Cal 4th 84, 851 P2d 776 [1993] [wife whose ovum was fertilized in *571vitro by her husband’s sperm then implanted in surrogate/ gestational mother], cert denied 510 US 874 [1993]).

At present, there is no clear law in New York determining the relationship between a child and various women who may lay claim to parentage through a genetic or gestational relationship.7 And, of special significance, no reported decision, in this state or other states, has discussed or determined the parentage of a child’s gestational and genetic mothers in a proceeding which involves no dispute between the parties.

II. Adoption

Adoption has been generally described as follows:

“Adoptive families are the product of law, not blood. Through a highly regulated process culminating in a judicial proceeding, the state creates the status of parent and child ‘in all respects’ between individuals who are not biogenetically related and severs the child’s legal relationship to the biogenetic parents and their families. Once an adoption decree has been issued, the adoptive family replaces and becomes the legal equivalent of the biogenetic family. The adoptee receives a new birth certificate with the names of her adoptive parents substituted for the names of the woman and man, if any, listed as her parents at birth.” (Naomi R. Cahn and Joan Heifetz Hollinger, Families by Law: An Adoption Reader, at 1 [NY Univ Press 2004].)

In New York, adoption creates a legal parent-child relationship where none previously existed.8 Because the adoption statute is in derogation of the common law, it is to be strictly

*572construed (Matter of Robert Paul P., 63 NY2d 233 [1984]). Although the statute has been judicially extended to permit adoption by unmarried couples9 including same-sex couples (Matter of Jacob, 86 NY2d 651 [1995]), its purpose and effect is to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor, with one exception,10 is it available to reaffirm, an already existing parent-child relationship (see Matter of Adoption Petition of C.C., Cal Super Ct, Sept. 12, 1997, No. A 19833, cited in Ryiah Lilith, The G.I.F.T. of Two Biological and Legal Mothers, 9 Am U J Gender Soc Pol’y & L 207, 216 [2001]).11

The question, then, is whether adoption is appropriate and/or permitted where, as here, the party petitioning for adoption was legally married to the child’s mother at the time of the child’s conception and birth, and where she is also the child’s genetic mother.

Discussion

I. Marriage as Basis for Parentage

A. New York’s Recognition of Foreign Marriage

Ingrid and Mona were legally married in the Netherlands, and under general marriage-recognition rules,12 that marriage is recognized in New York (Martinez v County of Monroe, 50 AD3d 189 [4th Dept 2008], lv dismissed 10 NY3d 856 [2008]; C.M. v *573C.C., 21 Misc 3d 926 [Sup Ct, NY County 2008] [recognizing out-of-state marriage for the purpose of divorce action]). In addition to judicial recognition, New York’s executive branch has acted to extend full protection to same-sex couples validly married in other jurisdictions (see Mem from David Nocenti, Counsel to the Governor, to All Agency Counsel, RE: Martinez Decision on Same-Sex Marriages [May 14, 2008] [noting that “extension of . . . recognition (found in Martinez) is consistent with State policy” and directing state agencies to conform their policies and regulations]).13 Thus, as the child of a married couple, Sebastian already has a recognized and protected child-parent relationship with both Ingrid and Mona, arguably making adoption unnecessary and impermissibly duplicative.

Unfortunately, while this is the case in New York, the same recognition and protection of Mona’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government14 and other states would recognize Mona as Sebastian’s legal parent.15

*574B. Exception to the Presumption, DOMA, and Full Faith and Credit

Even under a traditional choice of law analysis, a marriage validly contracted in another state need not be accorded recognition if that marriage runs afoul of the forum state’s public policy (see Martinez, 50 AD3d at 192; Restatement [Second] of Conflict of Laws: Validity of Marriage § 283).

Currently there are explicit prohibitions against same-sex marriages in 44 states;16 29 of those states have passed constitutional amendments restricting marriage to one man and one woman,17 while 15 states prohibit same-sex marriage by statute.18 Without a change in these laws,19 or an unlikely expansion of the Full Faith and Credit Clause20 jurisprudence (US Const, art IV^ § 1; see Developments in the Law — The Law of Marriage and Family: Constitutional Constraints on Interstate Same-Sex Marriage Recognition, 116 Harv L Rev 2028, 2051 *575[2003]21 [.Developments in the Law]), these clear legislative statements of public policy would appear to permit courts of those states to deny recognition of same-sex marriages contracted elsewhere, and, arguably, also to legal rights flowing from those marriages, including presumptive parenthood.

Such a position is supported by DOMA, a 1996 congressional enactment that not only defines marriage as solely a relationship between a man and a woman,22 but also appears to allow the states to deny recognition of same-sex marriages validly contracted elsewhere.23 To date, there is little case law on the validity or effect of the state DOMAs, or the constitutionality of the federal DOMA.24

A holding by this court that Mona is already a legal parent by virtue of a foreign marriage recognized in this state may therefore offer insufficient protection in other states (see Finstuen v Crutcher, 496 F3d 1139, 1153-1154 [10th Cir 2007] [holding that although a court is required to recognize the valid judgments of another state court, it is not bound by another state’s court’s statutory interpretations]), just as DOMA itself precludes federal benefits based on marital status to same-sex couples. Thus, unless there is some other basis, grounded on genetic connection, upon which Mona’s parentage of Sebastian can be legally established, adoption is the sole means by which their parent-child relationship and the “rights and obligations incident thereto” can be fully protected.

*576II. Amended Birth Certificate as Basis for Parentage

An important consequence of adoption is the issuance of a new birth certificate, substituting the adoptive parent(s) for the birth mother and, if known and recorded, the genetic father (Public Health Law § 4138 [1] [c]).

In the context of gestational surrogacy, at least one New York court has ordered that a new birth certificate issue naming the genetic mother and her husband, the genetic father, in lieu of the gestational mother (Doe v New York City Bd. of Health, 5 Misc 3d 424 [Sup Ct, NY County 2004];25 see also Arredondo v Nodelman, 163 Misc 2d 757 [Sup Ct, Queens County 1994]). In accordance with the May 14, 2008 executive order (supra), the State Department of Health is now issuing birth certificates to same-sex couples validly married elsewhere showing both marital partners as the parents of children born to the marriage in New York (see New York State Dept Mem, Series 631.0, Recognizing Same-Sex Marriages Performed Legally in Other Jurisdictions [Dec. 8, 2008]) as is the New York City Department of Health (see City Eases Rule for Lesbian Moms, Newsday, Mar. 26, 2009, section A, at 24). This recognition should also be available to Ingrid and Mona, albeit retroactively.

A birth certificate is, however, only prima facie evidence of parentage (Public Health Law § 4103) and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a new birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of Mona’s parentage26 would provide insufficient protection of Mona’s parental rights.

III. Biogenetic Bases for Parentage

No New York statute deals directly with the issue presented here: whether the law should recognize both parties in a committed lesbian relationship27 — one of whom is the gestational mother, and the other of whom is the genetic mother of a child — as the child’s legal parents without the necessity of an *577adoption. There is little statutory law directed at ARTs, and then only in the context of artificial insemination (Domestic Relations Law § 73 [severing any rights or responsibilities of an anonymous sperm donor and conferring paternal rights on the consenting husband of a woman inseminated by a doctor]) or gestational surrogacy (Domestic Relations Law § 122 [making parties’ agreements to sever maternal rights of a gestational mother illegal]).

There is, however, substantial law on genetic parentage, denominated “paternity,” including both judicial filiation proceedings under Family Court Act article 5, and the simplified acknowledgment proceedings of Family Court Act § 516-a and Social Services Law § 111-k or Public Health Law § 4135-b. Subjected to equal protection analysis under both the state and federal constitutions,28 these existing laws provide a potential means for resolving the instant issue, even in the absence of more specific action by the legislature.29

A. Paternity/Filiation Proceedings30 The parentage of a child born out of wedlock is typically established through paternity proceedings, governed by article 5 of the Family Court Act.31 The proceedings are commenced by a petition (Family Ct Act § 523), and require a hearing at which

*578“[t]he mother or the alleged father shall be competent to testify but the respondent shall not be compelled to testify” (Family Ct Act § 531). If the proceeding is contested, DNA or other genetic marker tests may be ordered, and the results of such test(s) are admissible in evidence (Family Ct Act § 532; see also Matter of Department of Social Servs. v Thomas J. S., 100 AD2d 119 [2d Dept 1984] [upholding use of the tests against a self-incrimination claim]). Such tests are not, however, necessary where paternity has been conceded, explicitly or implicitly (see Wilson v Lumb, 181 Misc 2d 1033 [Sup Ct, St. Lawrence County 1999]). If the court finds the male respondent to be the father of the child, it makes “an order of filiation, declaring paternity” (Family Ct Act § 542 [a]), which order is then transmitted to the appropriate officials so that a new birth certificate may be issued (Family Ct Act § 543; Public Health Law § 4138 [1] [b]). The court may also, if necessary, make an order of support (Family Ct Act § 545), and/or of visitation (Family Ct Act § 549).

B. Acknowledgment of Paternity There is an even simpler procedure available to unmarried parents who both agree as to the man’s parentage,32 The mother and putative father may execute an acknowledgment of paternity, either immediately preceding or following the in-hospital birth of the child33 (Public Health Law § 4135-b [1] [a]), or subsequently (Social Services Law § 111-k), in accordance with the formalities enumerated in the relevant statutory provision34 (Family Ct Act § 516-a). After filing the acknowledgment, a new birth certificate issues showing the birth mother and *579(former) putative father as the child’s “natural” parents (Public Health Law § 4138 [1] [e]).

C. Equal Protection

The equal protection analysis here rests, as a threshold matter, on a relatively recent body of case law that has established some basic principles, unknown to and perhaps unimagined by the legislators who enacted the relevant provisions of the Family Court Act, Public Health Law and Social Services Law. First, and most critical, is the premise, endorsed by the Court of Appeals in Matter of Jacob (86 NY2d 651 [1995], supra) that a child’s legal parents may be of the. same sex, that is, rather than one mother and one father, a child may have two mothers, or two fathers35 (see also Perry-Rogers v Fasano, 276 AD2d 67, 74 n 1 [1st Dept 2000] [“under some . . . circumstances, we would have to treat both genetic and gestational mother as parents . . . ”]). Following second parent adoptions, both parents, albeit of the same sex, are listed on the new birth certificate;36 similarly, a recent executive order requires that birth certificates of children born in New York to a same-sex couple validly married elsewhere list both parties to the marriage as parents (see Mem from David Nocenti, Counsel to the Governor, to All Agency Counsel, RE: Martinez Decision on Same-Sex Marriages [May 14, 2008]). Thus, in New York, there is no legal impediment to recognizing the parentage of two mothers.

Decisions in this and other states have also established the principle that, in cases involving ARTs, the legally recognized state of “motherhood” can derive from (1) gestation (see e.g. McDonald v McDonald, 196 AD2d 7 [2d Dept 1994] [wife who was gestational mother was the “natural mother”]); (2) genetics (Doe v New York City Bd. of Health, 5 Misc 3d 424, 427 [Sup Ct, NY County 2004] [granting an “order of maternity” to a genetic mother and directing issuance of a second birth certificate reflecting that determination]; Culliton v Beth Israel Deaconess *580Med. Ctr., 435 Mass 285, 756 NE2d 1133 [2001];37 Arredondo, 163 Misc 2d 757 [1994] [declaring genetic mother the legal mother and directing City to issue new birth record to reflect that fact]; Belsito v Clark, 67 Ohio Misc 2d 54, 644 NE2d 760 [Ct Common Pleas 1994]); or (3) both (see e.g. K.M. v E.G., 37 Cal 4th 130, 117 P3d 673 [2005], supra).

Examined in light of these developments, the guarantee of constitutional equal protection, discussed below, sharply presents the question: why should an unmarried man who is genetically related to, and who has established a parental relationship with a child38 be permitted to establish legally protected and recognized rights of parentage through statutory acknowledgment or filiation proceedings when a similarly situated39 woman cannot? Or, put another way, why shouldn’t the lesbian genetic mother of a child born to her partner be permitted to utilize either of the existing statutory paternity procedures to establish her parentage status and rights, rather than being limited to the more expensive, time-consuming and intrusive40 adoption mechanism?

*581D. The Constitutional Standard

Under both the state41 and federal constitutions, equal protection requires that gender-based classifications be subject to “heightened scrutiny” (People v Liberta, 64 NY2d 152 [1984]; e.g. Mississippi Univ. for Women v Hogan, 458 US 718, 725-726 [1982] ; Craig v Boren, 429 US 190, 197 [1976]). That is, they must serve “important governmental objectives” and “the discriminatory means employed [must be] substantially related to the achievement of those objectives” (United States v Virginia, 518 US 515, 533 [1996] [internal quotation marks omitted]; People v Liberta, 64 NY2d at 168).

Applying these principles to New York’s statutory scheme, it is clear that provisions permitting the biological (“putative”) father of a child born out of wedlock to establish parental status while excluding the genetic mother from the same opportunity is a constitutionally prohibited gender-based classification. The governmental interest underlying New York’s paternity laws— which themselves abrogated common law affording legal parentage only to men married to a child’s mother — is to protect the welfare of the “illegitimate child” by assigning support obligations to a second person biologically connected to the child42 (see Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5 [1983] ).43

That is, in essence, the same governmental interest cited in Matter of Jacob to permit adoptions by same-sex couples (see *582Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 110, at 26 [1999 ed]). And even as the Court in Jacob did not distinguish between potential adoptive parents based on their gender/sexual orientation, there is no rational, much less compelling, reason to discriminate between male and female genetic parents who seek to use New York’s statutory paternity laws to establish parental rights, as well as corresponding responsibilities, to their children.44

Having established impermissible gender-based discrimination, the question becomes what should be done with the overtly discriminatory (paternity) statutes. Where a statute’s gender classification fails to meet the heightened scrutiny standard, courts have several choices: they may construe the statute in a way that avoids constitutional infirmity (People v Barber, 289 NY 378, 385 [1943] [a “statute should be construed when possible in (a) manner which would remove doubt of its constitutionality”]; Matter of Rochelle L. v Bruce M., 89 AD2d 765 [3d Dept 1982] [substituting gender neutral language in Family Ct Act § 532 to avoid constitutional infirmity]; Matter of Lisa M. UU. v Mario D. VV., 78 AD2d 711 [3d Dept 1980] [reading Family Ct Act § 514 as gender neutral to preserve constitutionality]), or they may declare relevant parts of the statute unconstitutional. Where the constitutional defect is due to underinclusion, “a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded” (People v Liberta at 170). The choice depends on what the court believes the legislature would have done if it had “foreseen” the underinclusiveness (Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191, 196 [1984]).

*583To the extent it is possible to predict what the legislature would have done if it had foreseen the underinclusiveness of the paternity statutes, it seems apparent that it would have extended those statutes to genetic mothers. Although the legislature has not yet legalized same-sex marriage, given the undeniable legislative purpose of paternity and filiation proceedings to provide two parents, and two sources of support for children born out of wedlock, it is inconceivable that the legislature would decline to provide those same protections just because the second, genetically related parent is a woman, not a man.45

Chief Judge Kaye’s opinion in Matter of Jacob is illustrative. Construing an unclear statute to ensure its constitutionality, she wrote:

“[A] construction of [Domestic Relations Law § 117] that would deny children [like those whose second parent adoptions were under review] the opportunity of having their two de facto parents become their legal parents, based solely on their biological mother’s sexual orientation . . . would not only be unjust under the circumstances, but also might raise constitutional concerns in light of the adoption statute’s historically consistent purpose — the best interests of the child.” (86 NY2d at 667 [citations omitted].)

So too here, the consistent purpose of serving children’s best interests by providing them with two responsible parents, rather than one, requires that paternity proceedings and acknowledgment of paternity should be made available to lesbian genetic co-mothers.

Although New York has not adopted the Uniform Parentage Act (UPA) ([2000] §§ 101-905, ULA Parentage §§ 101-905; [1973] §§ 1-30, ULA Parentage §§ 1-30),46 that model statute provides additional support for extending the availability of paternity proceedings to genetic mothers (see UPA [2000] § 106). *584UPA (2000) § 201 presumptively designates a child’s gestational mother as her legal mother, but also allows for establishment of a legally recognized parental relationship by a genetic mother (see Belsito, 67 Ohio Misc 2d 54, 644 NE2d 760 [interpreting Ohio’s UPA]; Ryiah Lilith, The G.I.F.T. of Two Biological and Legal Mothers, 9 Am U J Gender Soc Pol’y & L 207, 235 [2001]). The UPA does not, itself, provide procedures for determining “maternity” other than by gestation,47 but contains several provisions by which a man can establish paternity, including through proof of genetic parentage (UPA [2000] art 5; UPA [1973] § 12).48 Significantly, UPA (2000) § 106 and UPA (1973) § 21 state that any relevant sections of the UPA, presumably including UPA (2000) § 204 and UPA (1973) § 4 (a), can be applied to establish maternity as well49 (Ryiah Lilith, The G.I.F.T. of Two Biological and Legal Mothers, 9 Am U J Gender Soc Pol’y & L 207 [2001]). So, also, should New York’s existing procedures for establishing paternity be available for determination of the legal parenthood of a genetic mother.

IV Full Faith and Credit for Adoption The parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition (Finstuen at 1152-1153; Adar v Smith, 591 F Supp 2d 857, 861-862 [ED La 2008]). That is also the view of most commentators (see e.g. Rhonda Wasserman, Are You Still My Mother ?: Interstate Recognition of Adoptions by Gays and Lesbians, 58 Am U L Rev 1 [2008]; Barbara J. Cox, Adoptions by Lesbian and Gay Parents Must be Recognized by Sister States under the Full Faith and Credit Clause Despite Anti-Marriage Statutes That Discriminate against Same-Sex Couples, 31 Cap U L Rev 751 [2003]; Hollinger et al., 1 Adoption Law and *585Practice § 3.06 [6] [2008]; Scoles et al., Conflict of Laws § 16.6, at 703 [4th ed 2004]).

Assuming that New York’s statutory paternity proceedings are available to Mona because of the requirements of equal protection,50 the question is whether either an order of filiation or an acknowledgment of paternity would afford Mona — and, of course, Sebastian — a legally recognized parental relationship outside this state’s borders.

On its face, for full faith and credit purposes, a judicial order of filiation should produce the same result as an adoption.51 In contrast, an “acknowledgment of paternity” would facially appear to offer no protection under the Full Faith and Credit Clause, since it is not a judgment, order or decree, nor is it the result of “judicial proceedings.” However, the Public Health Law specifically provides, “[a]n acknowledgment of paternity executed by the mother and father of a child born out of wedlock shall establish the paternity of a child and shall have the same force and effect as an order of paternity or filiation issued by a court of competent jurisdiction” (Public Health Law § 4135-b [3] [a] [emphasis added]).

Moreover, federal law requires states receiving federal funding for child support collection to grant full faith and credit to acknowledgments of paternity from other states that comply with the requirements of title IY part D, of the Social Security Act (42 USC, ch 7, § 666 [a] [1]-[10];52 see also 45 CFR 302.70 [a] [9] [ii]). At present, all states have enacted provisions,53 like New York’s Family Court Act § 571 (11), containing a full faith and credit provision. However, extension of New York’s paternity acknowledgment to genetic mothers would depend on construction of the statute by courts of this state; other states *586would be free to take a contrary view, such that reliance on the federal statutory guarantee offers no absolute guarantee of recognition to Mona and Sebastian. Nor would the Full Faith and Credit Clause itself require recognition without a public policy exception54 since it does not apply to a state court’s construction of its own statutes (Finstuen, 496 F3d 1139 [2007]).

If certainty is what the parties want, and Sebastian needs, reliance on a gender neutral acknowledgment of paternity may not provide all the protection available either from a judicial filiation proceeding or the second parent adoption requested here.

V Jurisdiction

The Family Court Act grants “exclusive original jurisdiction” over “proceedings to establish paternity” to the Family Court, but also provides that “[i]n accordance with the provisions of section one hundred eleven-b of the domestic relations law, the surrogate’s court has original jurisdiction concurrent with the family court to determine the issues relating to the establishment of paternity” (Family Ct Act § 511 [emphasis added]).

This rather opaque distinction is somewhat clarified by the language of Domestic Relations Law § 111-b, which permits surrogates “to determine any issue of paternity arising in the course of [an adoption] proceeding and to make findings and issue an order thereon” (Domestic Relations Law § 111-b [1]). The surrogate is expressly prohibited from granting any relief “relating to support of the child” incident to a determination of paternity (Domestic Relations Law § 111-b [2]); as the section concludes: “A judge of the family court shall continue to exercise all of the powers relating to adoption and declaration of paternity conferred upon the family court by law” (Domestic Relations Law § 111-b [3] [emphasis added]).

Thus it appears that this court could “determine parentage” under a constitutional, gender neutral reading of the paternity laws, but only “in the course of [an adoption] proceeding.” Even then, it is unclear whether a surrogate could make a “declaration” of parentage that is the equivalent of an article 5 Family Court judgment. There is, however, little practical effect, *587even were jurisdiction most broadly construed,55 since all the disadvantages of the adoption proceeding necessarily attend any exercise of this court’s power.

Conclusion

Sebastian’s genetic mother has other potential legal avenues: first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity (filiation); and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to full faith and credit. This court, however, lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties. And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.

Mona’s petition to adopt Sebastian is, therefore, granted, and, as a matter of law, in addition to her own genetic and loving connection, she is accorded all the rights and responsibilities appurtenant to the relationship of parent to her son Sebastian.