In Debra H v Janice R, ___NY3d___, 2010 WL 1752168 (N.Y.) the Court of Appeals reaffirmed it holding in Alison D v. Virginia M. (77 N.Y.2d 651 [1991] ), that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent. It rejected the argument that Matter of Shondel J. v. Mark D. (7 N.Y.3d 320 [2006] ) endorsed a nonbiological or nonadoptive parent's right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D and held that Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups. However, because Debra H. and Janice R. entered into a civil union in Vermont before M.R.'s birth, it reversed the Appellate Division's for reasons of comity, holding that Debra H. was M.R.'s parent under Vermont law and, as a matter of comity she was his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing. The Court limited its ruling, which did not resolve whether New York extends comity to the civil union for other purposes. It decided only that New York will recognize parentage created by a civil union in Vermont.

Respondent Janice R. was the biological mother of M.R., a six-year old boy conceived through artificial insemination and born in December 2003. Janice R. and petitioner Debra H. met in 2002 and entered into a civil union in the State of Vermont in November 2003, the month before M.R.'s birth. Janice R. repeatedly rebuffed Debra H.'s requests to become M.R.'s second parent by means of adoption. After the relationship between Janice R. and Debra H. soured and they separated in the spring of 2006, Janice R. allowed Debra H. to have supervised visits with M.R. each week. After a while Janice R. began scaling back the visits and then cut off all communication between Debra H. and M.R. Debra H. brought a proceeding against Janice R. in Supreme Court for joint legal and physical custody of M.R., restoration of access and decisionmaking authority with respect to his upbringing, and appointment of an attorney for the child. At the hearing Debra H. acknowledged the decision in Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991] ), which held that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent, but contended that Matter of Shondel J. v. Mark D. (7 N.Y.3d 320 [2006] ) endorsed a nonbiological or nonadoptive parent's right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D. In support of this interpretation of our precedents, Debra H. emphasized that Shondel J. cited Jean Maby H. v. Joseph H. (246 A.D.2d 282, 676 N.Y.S.2d 677 [2d Dept 1998] ), a divorce proceeding in which the husband successfully invoked equitable estoppel to seek custody and visitation with a child born to the wife prior to the marriage, whom he neither fathered nor adopted. Debra H. also urged Supreme Court to consider the effect of the parties' civil union, and alluded to the Vermont Supreme Court's decision in Miller-Jenkins v. Miller-Jenkins (180 Vt. 441, 912 A.2d 951 [2006], cert denied 550 U.S. 918 [2007] ). Janice R. stressed that she had always spurned Debra H.'s entreaties to permit a second-parent adoption. She argued, among other things, that Alison D., which interpreted Domestic Relations Law 70, was not eroded or overruled by Shondel J

Supreme Court ruled in Debra H.'s favor. The judge reasoned that "it [was] inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support obligations, but preclude a nonbiological parent from invoking [equitable estoppel] against the biological parent in order to maintain an established relationship with the child" since, in either event, "the court's primary concern should be furthering the best interests of the child". Supreme Court concluded that the facts alleged by Debra H., if true, "establish[ed] a prima facie basis for invoking the doctrine of equitable estoppel." In this regard, the judge considered the parties' civil union to be "a significant, though not necessarily a determinative, factor in [Debra H.'s] estoppel argument" because, under Vermont law, "parties to a civil union are given the same benefits, protections and responsibilities . . . as are granted to those in a marriage," which "includes the assumption that the birth of a child during a couple's legal union is 'extremely persuasive evidence of joint parentage' " ( quoting Miller-Jenkins, 180 Vt. at 466, 912 A.2d at 971). Because of the many contested facts, however, Supreme Court ordered another hearing to resolve whether Debra H. stood in loco parentis to M.R., as she asserted, and therefore possessed standing to seek visitation and custody.

Janice R. appealed, and obtained a stay of the equitable-estoppel hearing ordered by Supreme Court, pending disposition of the appeal. On April 9, 2009, the Appellate Division unanimously reversed on the law, vacated Supreme Court's order, denied the petition, and dismissed the proceeding. The court acknowledged that while the "record indicate[d] that [Debra H.] served as a loving and caring parental figure during the first 2 1/2 years of [M.R.'s] life, she never legally adopted [him]" and, in accordance with Alison D ., "a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law 70" (61 AD3d 460, 461 [1st Dept 2009] ). The Appellate Division commented that, to the extent that denial of any right to equitable estoppel in this case might be considered inconsistent with Shondel J. and Jean Maby H., its own "reading of precedent was such that the doctrine of equitable estoppel may not be invoked where a party lacks standing to assert at least a right to visitation".

The Court of Appeals, in an opinion by Judge Read, reaffirmed its holding in Alison D., but reversed the Appellate Division's order in this case for reasons of comity in light of Debra H.'s status as M.R.'s parent under Vermont law. She pointed out that in Alison D., the court decided that DRL section 70 does not confer standing on a biological stranger to seek visitation with a child in the custody of a fit parent. Domestic Relations Law § 70(a) provides, in part, that "[w]here 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.

The Court rejected Debra H.’s argument that the court should exercise what she characterized as longstanding common law and equitable powers to recognize the parentage of a nonbiological, nonadoptive individual on a theory of equitable estoppel and in the child's best interest. She asked the court to revisit and either distinguish or overrule Alison D., a case that closely resembles this one factually.

Judge Read explained that in that case Alison D., the former romantic partner of Virginia M., petitioned for visitation with Virginia M.'s child under Domestic Relations Law s 70. According to Alison D., she and Virginia M. established a relationship, began living together, and decided to have a child whom Virginia M. would conceive through artificial insemination. They agreed to share all parenting responsibilities, and continued to do so for the first two years of the child's life. When the child was about 2 1/2 years old, however, the parties ended their relationship and Alison D. moved out of the family home. The parties adhered to a visitation schedule for a time, but Virginia M. at first restricted and eventually stopped Alison D.'s contact with the child. In that case the Court rejected Alison D.'s argument that she "acted as a 'de facto' parent or that she should be viewed as a parent 'by estoppel ' " (Alison D., 77 N.Y.2d at 656, 569 N.Y.S.2d 586, 572 N.E.2d 27). The rationale of the Court in Alison D was that "[t]raditionally, 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, even in situations where the nonparent has exercised some control over the child with the parents' consent ... To allow the courts to award visitation--a limited form of custody--to a third person would necessarily impair the parents' right to custody and control" (id. at 656-657, 569 N.Y.S.2d 586, 572 N.E.2d 27). Because Alison D. conceded that [Virginia M. was a fit parent, she had no right to petition the court to displace the choice made by the fit parent in deciding what is in the child's best interests. The Court emphasized that where the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation and it gave the courts the power to determine whether an award of visitation would be in the child's best interests" . Thus, it refused to read the term parent in section 70 to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child's parents and who wish to continue visitation with the child. Judge Read noted that the in its decision in Alison D., the Court cited Matter of Bennett v. Jeffreys (40 N.Y.2d 543 [1976] ) and Matter of Ronald FF. v. Cindy GG. (70 N.Y.2d 141 [1987] ), cases which set forth bedrock principles of family law. In Bennett, the Court held that the State "may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances". Where extraordinary circumstances are present, the court determines custody based on the child's best interest. Concomitantly, in Ronald FF., it held that "[v]isitation rights may not be granted on the authority of the ... Bennett ... extraordinary circumstances rule, to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother"; and further noted that the mother possessed a fundamental right "to choose those with whom her child associates," which the State may not "interfere with ... unless it shows some compelling State purpose which furthers the child's best interests".

Judge Read rejected Debra H.’s argument that the Court implicitly departed from Alison D. in Shondel J., where there were affirmed findings of fact that Mark D. had held himself out as the child's biological father, and had treated her as his daughter for the first 4 1/2 years of her life. When Shondel J. sought orders of filiation and support, Mark D. requested DNA testing. The Family Court hearing examiner ordered genetic marker tests, which revealed that Mark D. was not the child's biological father. Shondel J. was an unusual case because "the process was inverted": "The procedure contemplated by sections 418(a) and 532(a) of the Family Court Act is that Family Court should consider paternity by estoppel before it decides whether to test for biological paternity". The Court held in Shondel J. 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". The Court premised its decision on "our precedents, the affirmed findings of fact and the legislative recognition of paternity by estoppel". On the latter point, it highlighted that although paternity by estoppel for purposes of child support "originated in case law," it was "now secured by statute in New York"; namely, sections 418(a) and 532(a) of the Family Court Act.

Judge Read pointed out that the Court did not mention Alison D. in Shondel J. Nor did it intend to signal disaffection with Alison D. by citing Jean Maby H., one of a handful of lower court decisions applying equitable estoppel to custody and visitation proceedings despite Alison D., where it considered and explicitly rejected this approach. The holding in Shondel J. was limited to the context in which that case arose--the procedure for determining the paternity of an "alleged father." The Court saw no inconsistency in applying equitable estoppel to determine filiation for purposes of support, but not to create standing when visitation and custody are sought. The Legislature has drawn the distinction in sections 418(a) and 532(a) of the Family Court Act which direct the courts to take equitable estoppel into account before ordering paternity testing, while section 70 of the Domestic Relations Law does not even mention equitable estoppel.

The Court rejected Debra H’s request to replace the bright-line rule in Alison D. with a complicated and non-objective test for determining so-called functional or de facto parentage. The Court stated that the flexible type of rule championed by Debra H. threatens to trap single biological and adoptive parents and their children in a limbo of doubt. These parents could not possibly know for sure when another adult's level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party. It found significant that the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by" the United States Supreme Court (citing Troxel v. Granville, 530 U.S. 57, 65 [2000] ). Courts must be sensible of "the traditional presumption that a fit parent will act in the best interest of his or her child" and protect the parent's "fundamental constitutional right to make decisions concerning the rearing of" that child. In the Courts view, this fundamental right entitled biological and adoptive parents to refuse to allow a second-parent adoption, as Janice R. did, even if they have permitted or encouraged another adult to become a virtual parent of the child, as Debra H. insisted was the case here.

The Court of Appeals agreed with Janice R. that any change in the meaning of "parent" under our law should come by way of legislative enactment rather than judicial revamping of precedent. Whether to expand the standing to seek visitation and/or custody beyond what sections 70, 71 and 72 of the Domestic Relations Law currently encompass remains a subject for the Legislature's consideration.

The Courts reaffirmation of Alison D. did not dispose of this case, because Debra H. and Janice R. entered into a civil union in Vermont before M.R.'s birth. This circumstance presented two issues: (1) whether Debra H. was M.R.'s parent under Vermont law and, (2) in the event that she is, whether as a matter of comity she is his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing.

Judge Read explained that Vermont's civil union statute provides that parties to a civil union shall have "all the same benefits, protections and responsibilities under law ... as are granted to spouses in a marriage" (Vt Stat Ann tit 15, 1204[a] ); and that they shall enjoy the same rights "with respect to a child of whom either becomes the natural parent during the term of the civil union," as "those of a married couple" (Vt Stat Ann tit 15, 1204[f] ). In Miller-Jenkins, the Vermont Supreme Court relied upon these provisions to hold that a child born by artificial insemination to one partner of a civil union should be deemed the other partner's child under Vermont law for purposes of determining custodial rights following the civil union's dissolution (Miller-Jenkins, 180 Vt. at 464-465, 912 A.2d at 969-970). The court concluded that in the context of marriage, a child born by artificial insemination was deemed the child of the husband even absent a biological connection. In light of section 1204 and by parity of reasoning, the court decided that the same result pertained to the partner in the civil union with no biological connection to the child.

Judge Read noted that the potential legal ramifications in New York of entering into a civil union in Vermont were uncertain in 2003, and remain unsettled except to the extent the Court resolves the specific issue--i.e., parentage--presented by this case. Whatever her motivation or expectation, Janice R. chose to travel to Vermont to enter into a civil union with Debra H. In light of the Miller-Jenkins decision, the Court concluded that Debra H. was M.R.'s parent under Vermont law as a result of that choice.

The next question was whether New York courts should accord comity to Vermont and recognize Debra H. as M.R.'s parent under New York law as well. Judge Read explained that the doctrine of comity "does not of its own force compel a particular course of action. Rather, it is an expression of one State's entirely voluntary decision to defer to the policy of another. Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantage in some future case in which the interests of the forum are more critical" (citing Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574, 580 [1980]). New York's "determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy; and our policy prevails in case of conflict". The court locates the public policy of the state in "the law as expressed in statute and judicial decision" and also considers "the prevailing attitudes of the community". Even in the case of a conflict, however, New York's public policy may yield "in the face of a strong assertion of interest by the other jurisdiction" . The Court noted that New York will accord comity to recognize parentage created by an adoption in a foreign nation (citing see L.M.B. v. E.R.J., 2010 N.Y. Slip Op 01345, *4-5 [2010] [comity may be extended to a Cambodian adoption certificate so that an individual who is a child's father under Cambodian law is also his father under New York law] ). It saw no reason to withhold equivalent recognition where someone is a parent under a sister state's law. Janice R., as was her right as M .R.'s biological parent, did not agree to let Debra H. adopt M.R. But the availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our State's public policy. Nor would comity undermine the certainty that Alison D. promises biological and adoptive parents and their children: whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent's legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage. The Court commented that the decision does not lead to protracted litigation over standing and is consistent with New York's public policy by affording predictability to parents and children alike. The Court limited its ruling, which did not resolve whether New York extends comity to the civil union for other purposes. It decided only that New York will recognize parentage created by a civil union in Vermont. The determination that Debra H. was M.R.'s parent allowed her to seek visitation and custody at a best-interest hearing. There, she will have to establish facts demonstrating a relationship with M.R. that warrants an award in her favor.

The order of the Appellate Division was reversed, and the case remitted to Supreme Court for a best-interest hearing in accordance with this opinion.

Judge Graffeo concurred with Judge Read's analysis as well as the result she reached in a separate concurring opinon in which Judge Jones concurred. She wrote separately to explain why she believed the decision in Matter of Alison D. v. Virgina M. (77 N.Y.2d 651 [1991] ) must be reaffirmed. Judge Ciparick, concurred in the result in an opinion in which Chief Judge Lippman concurred. She agreed with the majority that principles of comity require the recognition of Debra H.'s parentage of M.R. because of the Vermont civil union between the parties, but wrote separately to set forth her view that Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991] should be overruled as outmoded and unworkable. Judge Smith concurred in the result in an opinion.