Rosenblatt, J. (concurring in the result). I concur with the result reached by the plurality, but I feel that there are grounds for affirmance far stronger than the plurality’s conclusions as to the level of the petitioner John E.’s fitness, and the promptness by which he asserted his claims. For that reason, I add the following by way of concurrence.
To begin with, I disagree with our dissenting colleague in his view that Matter of Raquel Marie X. (76 NY2d 387, cert denied sub nom. Robert C. v Miguel T., — US —, 111 S Ct 517) compels us to order that the child be taken from the adoptive parents and given to the petitioner, the putative biological father.1 I do not believe that Matter of Raquel Marie X. mandates any such result.
I recognize, of course, that virtually every contest between a biological parent and an adoptive parent touches the deepest emotions, and that in other instances when a biological parent prevails, as he or she often should and does, the adoptive parents are left with heartache, and the child is brought to a less familiar environment. Here we are presented with features that make the prospect of a custody shift all the more discomforting.
Daniel, the subject of this proceeding, is now three years old. From the time he was four days old he has been under the care of his adoptive parents, the only parents he has ever known. In abundance, they have given him parental love, physical comfort, and emotional security. According to the uniform expert testimony and the Family Court, the shift in custody carries with it potentially devastating emotional consequences for Daniel.
Moreover, the birth mother willingly put the child up for adoption, and has not altered her position. Daniel was conceived as a result of her extramarital affair with the petitioner, who at the time the child was conceived and born was also married to someone else. The birth mother has gone back to her husband, whose name appears on Daniel’s birth certifi*385cate, and who also supports the adoption. The petitioner, who is 48 years old, has since been divorced and lives with his 23-year-old daughter, who is engaged in Pennsylvania in providing day care services for 6 or 7 children.
From his union with his former wife, the petitioner has two other sons, one of whom is also grown. In that breakup, the petitioner, interestingly, agreed to give custody of the other son, a teen-ager, to his former wife. In pressing his claim for Daniel, whom he has never seen, the petitioner stated that because he works during the daytime, he would place Daniel in child care under his daughter’s aegis.
The adoptive parents have had Daniel practically since birth. They wanted him, planning their lives and preparing their home for his arrival under the belief and the wholly reasonable expectation that they would raise him as their child.
A change in custody would entail not only severe adversity for Daniel, but the bitterest of ironies. The adoptive parents took Daniel on December 19, 1987, when Domestic Relations Law § 111 gave the petitioner no right to veto the proposed adoption. During the litigation the parties and the Family Court Judge proceeded on the basis that Domestic Relations Law § 111 had a requirement that the petitioner could not meet, notably, that a biological father, to gain standing to veto a proposed adoption, must have lived openly with the birth mother for six months before the child’s placement for adoption (see, Domestic Relations Law § 111 [1] [e]).
On July 10, 1990, several months after the Family Court ruled in favor of the adoptive parents, the Court of Appeals, in Matter of Raquel Marie X. (supra), held the six-month requirement of Domestic Relations Law § 111 (1) (e) unconstitutional. At the Family Court proceedings in the case before us, neither the parties nor the court had addressed the constitutionality of the six-month requirement. Even in his appellate brief, which he filed before Matter of Raquel Marie X. was decided, the petitioner argued due process, equal protection, and his justification for noncompliance with Domestic Relations Law § 111 (1) (e), but did not, until oral argument of this appeal, make the constitutional challenge that formed the basis for the decision in Matter of Raquel Marie X. Nevertheless, he now invokes Matter of Raquel Marie X., an unrelated case involving similar but not identical considerations, to pull the rug out from under the adoptive parents, and Daniel stands to be grievously injured in the process, as well.
*386The application of the rule in Matter of Raquel Marie X. to future cases is a cogent acknowledgment of an important "liberty” interest of biological fathers (see, Lehr v Robertson, 463 US 248, 257; Michael H. v Gerald D., 491 US 110, 109 S Ct 2333). It furthers paternal responsibility by placing paternal biological ties on a constitutional level, and invokes valued equal protection concepts. It stands to work well when people are on notice as to its teachings, and when its compelling rationale is compatible with the facts. Here, it is a misfit.
The petitioner invokes Matter of Raquel Marie X. (supra) for the proposition that his biological "liberty” interest transcends the State’s vital interest in assuring that the adoption process be free of the trepidation that inhibits qualified people from adopting children, and free of the uncertainties that threaten the security of adopted children.
Matter of Raquel Marie X. (supra), however, did not involve or address certain considerations that our case presents. First, there is what I would characterize as the fundamental interests of the child. I do not mean the conventional "best interests” test (see, Friederwitzer v Friederwitzer, 55 NY2d 89; see also, Eschbach v Eschbach, 56 NY2d 167), as employed by the Family Court and the plurality in this case. The "best interests” are typically at issué in custody disputes between mothers and fathers, and they frequently pose a choice between two environments (sometimes both good, sometimes varying). In our case, it is a different kind of choice, involving a wrenching uprooting that so palpably disserves Daniel, that it amounts to a denial of his constitutional right to liberty, on a scale certainly no less than the petitioner’s asserted liberty interest. The petitioner can better survive defeat in this litigation than can Daniel.
The adoptive parents also vehemently argue that the petitioner should not be permitted to advance his claim of fatherhood in the context of a doubly adulterous relationship. Without placing the matter on moral grounds, it is enough to say that the petitioner, as a 45-year-old married adult, entered willingly into an extramarital affair with a married woman and had reason to know what could happen. Unlike Daniel, he is not innocent. Daniel, on the other hand, has had no say in any of this, and should not on this record be consigned to the consequences of the petitioner’s biological claims.
The proof in this case unquestionably supports the conclusion, based upon the uncontradicted expert testimony, that *387the change in custody portends disaster for Daniel. The psychologist who testified at the hearing spoke of the "devastating” psychological effects that await Daniel if his parental bond is to be exploded, while the psychiatrist described the "serious damage” facing Daniel, including the impairment of his cognitive and intellectual functions. This testimony bears repetition, but it takes no expert to recognize the manifest dangers to Daniel, and to recoil from the idea that such a result can somehow be compelled by law. The Department of Social Services strongly recommended against a change in custody, calling the prospect potentially injurious in the extreme. I cannot see how the "liberty interests” of this father, under the facts of this case, can prevail over Daniel’s interest to grow up free of avoidable, severe emotional scarring. Under these circumstances I would count the child’s interests and deprivation to be of constitutional dimensions. I do not view this as a choice between a cozy picket-fenced ranch house environment as against that of a middle-aged single parent of modest income. Were the situation reversed, with the biological father happily married and able to offer the child every possible comfort, the depersonalization of this child, and the destruction of a loving, parental bond, would be no less distressing.2
*388The reach of Matter of Raquel Marie X. (supra) is debatable enough to have occasioned a dissent in this court. If Matter of Raquel Marie X. had been decided before Daniel’s conception (or if Domestic Relations Law § 111 [1] [e] had never been enacted), the Family Court, were it of the same view as the dissent, might have immediately given Daniel over to his biological father. No bond of any duration would have developed between Daniel and his adoptive parents, certainly not the powerful three-year tie that has been forged.3 But while the petitioner may claim that he should have had the child from the outset and is not accountable for the law’s delay, Daniel is utterly blameless. As between Daniel and the petitioner, the consequences of that delay and of the unconstitutionality of Domestic Relations Law § 111 (1) (e) should not be visited on the child, so as to reduce him to a biological chattel. All of the unique and remarkable features of this case combine to create a set of extraordinary circumstances such as to militate against a change in custody (see, Matter of Bennett v Jeffreys, 40 NY2d 543).
The bond between Daniel and his adoptive parents was created by law, in faithful reliance on law and, with the final order of the Family Court Judge, was ratified by law. No one at the Family Court stage expressed doubts as to the constitutionality of Domestic Relations Law § 111 (1) (e). Accordingly, when a statute is declared unconstitutional, there is room to withhold retroactive application where there has been good-faith reliance on the statute, coupled with a demonstrably inequitable result (see, Lemon v Kurtzman, 411 US 192; Matter of Cahill v Public Serv. Commn., 147 AD2d 49, affd 76 NY2d 102).
This issue was not addressed in Matter of Raquel Marie X. (supra), but it is difficult to imagine a more unconscionable result than the prospect of telling Daniel, that even though all was originally proper in law, somehow a mistake has been made, and he must be taken forever from his parents.4
*389Apart from the respective constitutional interests here at stake, there is the State’s interest. The facts of this cáse suggest that we view the State’s interest somewhat differently than in Matter of Raquel Marie X. (supra). Here, we cannot put this societal interest on any one side of the equation. Daniel has a unique interest, different from his adoptive parents, and different from that of his biological father. Moreover, society has an interest in what happens to Daniel. The State also has an interest in encouraging proper adoptions, but on the biological father’s side we have a collective interest in encouraging individual, paternal rights, because with them go paternal responsibilities, and, in turn, enhanced domestic stability.
In Matter of Raquel Marie X. (supra) and in the companion case of Matter of Baby Girl S. (141 Misc 2d 905, affd 150 AD2d 993, affd 76 NY2d 387), both fathers were unwed and had sired children of unwed mothers. Although the holding did not turn on that feature, I take it to have been of more than passing concern. The societal interest in Matter of Raquel Marie X. and Matter of Baby Girl S. conjoined with the "liberty interests” of the biological fathers, at least insofar as there is a societal interest in unwed fathers acknowledging their paternity. The recognition of those paternal rights carries benefits that society reaps when unwed fathers, invoking biological rights, undertake the responsibilities that go with those rights. To the extent that Matter of Raquel Marie X. and Matter of Baby Girl S. include those considerations, they are entirely lacking here. Beyond the petitioner’s interests, there is absolutely nothing to justify the incalculable harm to *390this child that would flow from a reversal of the Family Court order.
. No order of filiation has been signed. Because the parties seem to have assumed that the petitioner is the biological father, based on the results of a blood test, I will refer to him hereafter as the biological father.
. As we have observed, the petitioner has no order of filiation. Seeking one, he would delegitimize the child—a result which, under equitable estoppel principles, we found unacceptable in Matter of Ettore I. v Angela D. (127 AD2d 6; see also, Purificati v Paricos, 154 AD2d 360; Matter of Campbell v Campbell, 149 AD2d 866; Matter of Sharon GG. v Duane HH., 95 AD2d 466, affd 63 NY2d 859) despite the results of an HLA test which disclosed a plausibility of paternity score of 99.82—a figure comparable to the petitioner’s 99.93. Daniel was not born out of wedlock. He was born when his mother was married to her husband, whose name appears on Daniel’s birth certificate, as Daniel’s father. In Matter of Raquel Marie X. (76 NY2d 387), both the birth mother and the biological father were unwed, and there was therefore no prospect as there is here, of a child bom in wedlock being delegitimized. Indeed, in Matter of Raquel Marie X., the very opposite took place. There, the biological parents, both of whom were married to no one at the time of the child’s conception and birth, had "reunited,” and together they supported the biological father’s position. The same was true in the companion case, Matter of Baby Girl S. (141 Misc 2d 905, affd 150 AD2d 993, affd 76 NY2d 387). I recognize that the question of legitimacy was not considered, and certainly not of pivotal concern in Matter of Raquel Marie X. and Matter of Baby Girl S., but I know of no case —and can imagine none—in which a court has delegitimized a child, wrenched him from his home and family, and seriously jeopardized his emotional well-being in the name of someone else’s rights that were not proffered at the time the child, under then-valid law, was properly placed in (n> cont’d) *388an adoptive home. A reversal would mark Daniel as the first child to be so treated.
. Indeed, protracted separation between natural parent and child, and the child’s attachment to the custodian, have been considered "extraordinary circumstances” supporting a court’s determination to deny the natural parent custody of the child (see, Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Michael Paul T. v Thomas R., 124 AD2d 970).
. I also note that no Law Guardian has been appointed to represent Daniel’s interest. Surely, no challenge to a child’s legitimacy (and with it, (ru cont’d) *389custodial fate) should ever succeed with no one representing the child’s interest. To even contemplate an order of filiation, which is to say, bastardization, with no representation for Daniel, would amount to a condition in which the child’s rights are not being adequately protected, insofar as the efficacy or accuracy of the blood test is concerned, to say nothing of the question of custody in the context of a proposed order of filiation (see, Johannessen v Johannessen, 148 AD2d 895). In this instance, however, the appointment of a Law Guardian is unnecessary, in light of the plurality’s determination that Daniel’s best interests are overwhelmingly satisfied by leaving him with the adoptive parents. Assuming that the blood test results could not be faulted, despite any potential challenge by any Law Guardian, the plurality result, which assumes the accuracy of the blood test, fully protects the child’s interests by preserving his legitimacy, his home, and his relationship with the only parents he has ever known. To remit the matter for appointment of a Law Guardian at this stage would severely prejudice the child’s interest, and protract the litigation needlessly.