CHIN, J. I dissent.
The governing decisions of both the United States Supreme Court and this court establish that a biological father who promptly comes forward to assume his paternal responsibilities has a constitutional liberty interest in the opportunity to develop a relationship with his child, which the state may not extinguish without due process of law. The existence of this interest does not depend on the marital status of the child’s mother. The trial court in this case found that Jerry K., who alleges that he is the biological father of Dawn D.’s son, had done all he could under the circumstances to demonstrate a full commitment to his parental responsibilities, and the majority does not contest this finding. Thus, assuming he is the child’s biological father, Jerry has a protected constitutional liberty interest in the opportunity to develop a relationship with his son, which the state may not extinguish without due process of law.
In order to determine what process is due, we must balance Jerry’s interest against the state’s interests. Dawn cites state interests in protecting the child’s welfare and in preserving the stability of the marital family. These interests are, of course, both legitimate and substantial. However, on the facts of this case, they do not justify the state’s categorical presumption that Jerry’s exclusion from the child’s life is warranted nor its refusal to afford Jerry a hearing on the matter.
In reaching this conclusion, I do not suggest what the outcome of a hearing should be. A court might very well find that, under the circumstances, Jerry should have no contact with the child, even if he is the biological father. Moreover, the state may constitutionally enact a rebuttable presumption that this outcome serves the child’s best interests and may establish hearing procedures to protect the stability of the marital family. However, as a matter of due process, the state may not constitutionally deprive Jerry of all opportunity to be heard. Therefore, I cannot join the majority.
I. Factual and Procedural Background
According to the trial court findings, Dawn and Frank married in June 1989. In early January 1995, Dawn left Frank and began living with Jerry. In February 1995, Dawn became pregnant. Two months later, in April, she moved out of Jerry’s home and moved back in with Frank. In November 1995, Dawn gave birth to a son.
In August 1995, before the child’s birth, Jerry filed a complaint to establish a parental relationship. The complaint requested joint legal custody, with physical custody awarded to Dawn subject to Jerry’s right of reasonable visitation.
[949]Dawn answered the complaint in September 1995, asking the court to deny relief. She subsequently moved for judgment on the pleadings, arguing that Jerry could not maintain a paternity action because Frank was the child’s presumed father under Family Code section 7611.1 Dawn asserted that Frank was a presumed father under this statute because the child was bom during their marriage and Frank received the child into his home and openly held the child out as his own. She also asserted that Jerry lacked standing to request a blood test to establish biological paternity.
Jerry opposed the motion and submitted supporting evidence. According to his declaration, he began a sexual relationship with Dawn in December 1994, and she moved in with him in January 1995. She amended her voter registration to reflect Jerry’s address and had the post office change her mailing address to Jerry’s. Dawn told Jerry that she would marry him as soon as she legally could and that she wanted to start a family. At Dawn’s request, Jerry submitted to fertility testing. Jerry also began building an addition to his home in anticipation of having a child with Dawn. After Dawn became pregnant, she told people that the baby was Jerry’s, and that she and Jerry intended to marry. Jerry also submitted declarations from friends corroborating some of the statements in his declaration, including his assertion that Dawn said she wanted to marry Jerry and have children with him.
Dawn submitted reply declarations contesting some of Jerry’s assertions. For example, she denied telling Jerry that she would marry him as soon as she could. She also denied ever having an intent to change her domicile to Jerry’s residence. According to Dawn and Frank, they continued to have contact with each other while she lived with Jerry.
After argument, the trial court denied Dawn’s motion. Applying the relevant authorities, it first found that, if Jerry was the biological father, then he had a constitutionally protected interest in having an opportunity to develop a relationship with the child. In reaching this conclusion, the court stated: “It is hard to imagine what else [Jerry] could have done under these circumstances to ‘preserve his interest’ . . . and to prove that he has ‘promptly come forward and demonstrated a full commitment to his parental responsibilities.’ [Jerry] filed the within action to determine parentage prior to the birth of the child. Once he learned that the child was bom, he began negotiations with [Dawn] for blood testing, payment of child support and visitation. It would appear from correspondence between counsel that an agreement had been reached for visitation and payment of child support. It also appears that [Jerry] took a parenting class ... in preparation for the [950]birth of the child and his anticipated parental duties.” The court then balanced Jerry’s interest against the state’s interest in the child’s welfare and family stability. It concluded that, under the circumstances, Jerry should have an opportunity to establish he is the child’s biological father.
The Court of Appeal summarily denied Dawn’s petition for writ of mandate. We then granted Dawn’s petition for review.
II. Discussion
A. Jerry Has a Constitutionally Protected Interest
Constitutional due process protections “apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” (Board of Regents v. Roth (1972) 408 U.S. 564, 569 [92 S.Ct. 2701, 2705, 33 L.Ed.2d 548] (Roth).) Accordingly, the first step in analyzing a due process claim is to determine whether “the interest is within the Fourteenth Amendment’s protection of liberty and property.” (Id. at p. 571 [92 S.Ct. at p. 2706].) We must “begin the inquiry with a determination of the precise nature of the private interest that is threatened by the State. [Citation.] Only after that interest has been identified, can we properly evaluate the adequacy of the State’s process. [Citation.]” (Lehr v. Robertson (1983) 463 U.S. 248, 256 [103 S.Ct. 2985, 2990, 77 L.Ed.2d 614] (Lehr).) Thus, “we are faced with ... a familiar two-part inquiry: we must determine whether [Jerry] was deprived of a protected interest, and, if so, what process was his due.” (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428 [102 S.Ct. 1148, 1154, 71 L.Ed.2d 265].)
Regarding the first issue, applying the decisions of the United States Supreme Court and this court, I conclude Jerry has a constitutional liberty interest in the opportunity to develop a relationship with Dawn’s child, assuming he is the child’s biological father. The high court has addressed the constitutional rights of unwed fathers several times. In Michael H. v. Gerald D. (1989) 491 U.S. 110 [109 S.Ct. 2333, 105 L.Ed.2d 91] (Michael H), the high court considered the constitutionality of a California statute providing that “ ‘the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.’ ” (Id. at p. 117 [109 S.Ct. at p. 2339] (plur. opn. of Scalia, J.).) In Michael H., during the first year of the child’s life, she and her mother lived with the alleged natural father for two to three months, and he held her out as his child. The mother, with the child, then left the alleged natural father and rebuffed his further visitation attempts. He then filed a filiation action to establish paternity and visitation rights. Nine months later, the mother again became [951]involved with the alleged natural father. For the next eight months, when he was in town, he lived with the mother and her child and held the child out as his daughter. The mother then left the alleged natural father and reconciled with her husband. The alleged natural father and the child then sought visitation rights. (Michael H., supra, 491 U.S. at pp. 113-115 [109 S.Ct. at pp. 2337-2339] (plur. opn. of Scalia, J.).)
There was no majority opinion in Michael H. Justice Scalia, writing for the plurality, found that the alleged natural father had no “constitutionally protected right” under the circumstances. (Michael H., supra, 491 U.S. at p. 129, fh. 7 [109 S.Ct. at p. 2345] (plur. opn. of Scalia, J.).) However, Justice Stevens, who provided the fifth vote to uphold the statutory scheme, expressly refused to endorse this conclusion. Although concurring in the judgment, he disagreed with the plurality’s rejection of “the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.” (Id. at p. 133 [109 S.Ct. at p. 2347] (conc. opn. of Stevens, J.).) Indeed, he was “willing to assume for the purpose of deciding [the] case that [the alleged natural father’s] relationship with [the child] [was] strong enough to give him a constitutional right to try to convince a trial judge that [the child’s] best interest would be served by granting him visitation rights.” (Ibid.) However, Justice Stevens found the statutory scheme “consistent with the Due Process Clause” because he was “convinced that the trial judge had the authority under state law both to hear [the alleged natural father’s] plea for visitation rights and to grant him such rights if [the child’s] best interests so warranted . . . .” (Id. at p. 136 [109 S.Ct. at p. 2349] (cone. opn. of Stevens, J.).)
Justices White and Brennan filed separate dissents. In his dissent, Justice White, joined by Justice Brennan, found that the alleged natural father had “a liberty interest that cannot be denied without due process of the law . . . .” (Michael H., supra, 491 U.S. at p. 157 [109 S.Ct. at p. 2360] (dis. opn. of White, J.).) Justice White cited the court’s prior cases recognizing the liberty interest of a natural father in his relationship with his child, noting that none of those cases indicated “that the father’s rights were dependent on the marital status of the mother or biological father.” (Ibid) The “basic principle” is that “an unwed father who has demonstrated a sufficient commitment to his paternity by way of personal, financial, or custodial responsibilities has a protected liberty interest in a relationship with his child.” (Id. at pp. 157-158 [109 S.Ct. at p. 2360], fn. omitted (dis. opn. of White, J.).) Justice White stressed that the natural father “ha[d] asserted his interests in raising and providing for his child since the very time of the child’s birth.” (Id. at p. 159 [109 S.Ct. at p. 2361] (dis. opn. of White, J.).) [952]He also noted a previous high court decision suggesting that states “must provide a biological father of an illegitimate child the means by which he may establish his paternity so that he may have the opportunity to develop a relationship with his child.” (Ibid.) Quoting Lehr, supra, 463 U.S. at page 261 [103 S.Ct. at page 2993], Justice White explained: “ ‘When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child” [citation], his interest in personal contact with his child acquires substantial protection under the Due Process Clause.’ [Citation.]” (Michael H., supra, 491 U.S. at p. 160 [109 S.Ct. at p. 2361] (dis. opn. of White, J.).)
Justice Brennan, in a dissent joined by Justices Marshall and Blackmun, also found that the alleged natural father had a constitutional “liberty interest in his relationship” with the child. (Michael H., supra, 491 U.S. at p. 136 [109 S.Ct. at p. 2349] (dis. opn. of Brennan, J.).) Like Justice White, Justice Brennan explained that “marriage is not decisive in answering the question whether the Constitution protects the parental relationship under consideration.” (Id. at p. 144 [109 S.Ct. at p. 2353] (dis. opn. of Brennan, J.).) Also like Justice White, Justice Brennan quoted Lehr, supra, 463 U.S. at page 261 [103 S.Ct. at page 2993], in declaring that the interest of an unwed father in personal contact with his child acquires substantial protection when he “ ‘demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child . . . (Michael H., supra, 491 U.S. at p. 143 [109 S.Ct. at p. 2352] (dis. opn. of Brennan, J.).) Summarizing the “common ground shared by a majority of’ the high court, Justice Brennan explained: “Five Members of the Court refuse to foreclose ‘the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.’ [Citations.] Five Justices agree that the flaw inhering in a conclusive presumption that terminates a constitutionally protected interest without any hearing whatsoever is a procedural one. [Citations.] Four Members of the Court agree that [the alleged natural father] has a liberty interest in his relationship with [the child] [citations], and one assumes for purposes of this case that he does [citation].” (Michael H., supra, 491 U.S. at p. 136 [109 S.Ct. at p. 2349], original italics (dis. opn. of Brennan, J.).)
Lehr, the decision that both Justices Brennan and White quoted in their Michael H. dissents, is perhaps even more instructive on the issue before us. There, an alleged natural father sought to overturn an order of a New York state court granting a petition for adoption of a child by the mother’s husband. The mother had married her husband eight months after the child’s [953]birth. (Lehr, supra, 463 U.S. at p. 250 [103 S.Ct. at p. 2987].) The adoption petition was filed when the child was two years old. {Ibid.) During the child’s lifetime, the alleged natural father never lived with the mother and child or provided them with financial support. (Id. at p. 252 [103 S.Ct. at p. 2988].) The alleged natural father was not sent notice of the adoption proceeding and learned of it only four days before a court granted the adoption petition. (Id. at pp. 252-253 [103 S.Ct. at p. 2989].) In seeking to overturn the adoption order, he argued that the state had impermissibly extinguished his constitutional liberty interest in the potential relationship with his child without due process of law. (Id. at p. 255 [103 S.Ct. at p. 2990].)
Although the high court affirmed the adoption order, its reasoning indicates that the alleged natural father had a constitutional liberty interest that entitled him to due process, despite his initial lack of effort to have contact with the child. In the first part of its opinion, the court “considered] the nature of the interest in liberty for which [the alleged natural father] claims constitutional protection . . . .” (Lehr, supra, 463 U.S. at p. 256 [103 S.Ct. at p. 2990].) The court explained: “The intangible fibers that connect parent and child ... are sufficiently vital to merit constitutional protection in appropriate cases.” {Ibid.) The court further explained: “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.” (Id. at p. 262 [103 S.Ct. at pp. 2993-2994], fn. omitted.) The court noted that the alleged natural father had “never had any significant custodial, personal, or financial relationship with [the child], and he did not seek to establish a legal tie until after she was two years old.” (Ibid., fn. omitted.) Despite this lack of effort, the court stated that it had to determine whether New York’s statutes “adequately protected [the alleged natural father’s] opportunity to form such a relationship.” (Id. at p. 263 [103 S.Ct. at p. 2994], italics added.)
The court then considered, and found constitutionally adequate, the procedures New York afforded natural fathers. Under the statutory scheme, any man who filed with the state’s “putative father registry” or who fell within certain listed classes of possible unwed fathers was entitled to notice of any adoption proceeding and an opportunity to present evidence regarding the child’s best interests. (Lehr, supra, 463 U.S. at pp. 251-252 & fn. 5 [103 S.Ct. at p. 2988].) According to the high court, “[i]f this scheme were likely [954]to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be thought procedurally inadequate.” (Id. at pp. 263-264 [103 S.Ct. at pp. 2994-29994-2995].) However, the statutory scheme “adequately protected” the alleged natural father’s “opportunity to establish a relationship with” his child because “the right to receive notice was completely within [his] control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any [adoption] proceedings . . . .” (Id. at p. 264 [103 S.Ct. at p. 2995].)
As this discussion demonstrates, the high court in Lehr concluded that the alleged natural father had a constitutional liberty interest in the opportunity to develop a relationship with his child, even though he had made no effort to establish or cultivate a relationship with her during the first two years of her life. This conclusion is apparent both from the language of the court’s opinion, which I have set forth above, and from the very fact that the court proceeded to the second part of the due process analysis, determining the constitutional adequacy of the state procedures. Had it found that the alleged natural father had no constitutional liberty interest, the court would not have moved on to this second step.
In Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.), we reached precisely this interpretation of Lehr. There, we considered the constitutional rights of Rickie M., a biological father who did not achieve the status of a presumed father under California law in part because the child’s mother, a court order, and prospective adoptive parents thwarted his attempts to receive the child into his home. (Kelsey S., supra, 1 Cal.4th at p. 825.) More specifically, we had to determine the constitutionality of a statutory scheme that permitted adoption of Rickie’s biological child by third parties without Rickie’s consent. (Id. at pp. 824-825.) Applying the recognized analysis for due process claims, we first addressed the nature of Rickie’s asserted interest, “guided” by the high court’s decisions “dealing with the rights of unwed fathers.” (Id. at p. 830.) After observing that the high court in Lehr “recognized the uniqueness of the biological connection between parent and child,” we concluded: “Lehr can fairly be read to mean that a father need only make a reasonable and meaningful attempt to establish a relationship [with his natural child], not that he must be successful against all obstacles.”2 (Kelsey S., supra, 1 Cal.4th at p. 837.) Describing Michael H., we stated: “[I]t is clear that even in the extreme [955]circumstances of that case—the mother being married to and living with her husband, who was not the child’s biological father—a majority of the justices were solicitous of the rights of unwed biological fathers. For them, the determinative factor was whether a biological father has attempted to establish a relationship with his child.” (Kelsey S., supra, 1 Cal.4th at p. 837, italics added.) More generally, we extracted from the high court decisions “one unifying and transcendent theme .... The biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that biological connection into a full and enduring relationship.” (Id. at p. 838.) Ultimately, we concluded that “a biological father has a constitutionally cognizable opportunity interest in developing a relationship with his child.” (Id. at p. 844.) “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.)
Under these decisions, if Jerry is the child’s biological father, then he has a constitutional liberty interest in the opportunity to develop a relationship with his child. As I have previously noted, the trial court found “[i]t . . . hard to imagine what else [Jerry] could have done under these circumstances to ‘preserve his interest’ . . . and to prove that he has ‘promptly come forward and demonstrated a full commitment to his parental responsibilities.’ ” The majority does not challenge this finding, and independently finds that Jerry went to “considerable efforts to assert parental rights.” (Maj. opn., ante, at p. 937.) Thus, Jerry has done significantly more to assume his paternal responsibilities than did the alleged natural father in Lehr. If the alleged natural father in Lehr, who made no effort to establish a relationship with his child during the first two years of her life, had a constitutionally protected liberty interest in the opportunity to develop a relationship with his child—and the United States Supreme Court held that he did—then surely Jerry, who has been trying since before the birth of Dawn’s child to assume parental responsibilities, has an interest at least as great, assuming he is the natural father. Therefore, the interest Jerry asserts in this case is part of the liberty that the due process clause protects.
B. The Majority Ignores Kelsey S. and Misinterprets the Separate Opinions in Michael H.
In concluding that Jerry has no constitutional liberty interest on the facts of this case, the majority relies exclusively on the high court’s decision in [956]Michael H., supra, 491 U.S. 110. The majority asserts that at least seven justices there considered and rejected due process protection for the interest that Jerry asserts. (Maj. opn., ante, at p. 942.) It maintains that my analysis “fails to acknowledge the distinction the high court in Michael H. . . . drew between an unwed father’s interest in maintaining and preserving an existing parent-child relationship and the [rejected] claim . . . that an unwed father’s biological connection alone to a child bom to a married woman gives rise to a protected liberty interest in establishing a relationship with the child.” (Maj. opn., ante, at p. 942, original italics.) For several reasons, the majority errs.
First, the majority has mischaracterized my position. I would not, as the majority suggests, hold that “an unwed father’s biological connection alone to a child bom to a married woman gives rise to a protected liberty interest in establishing a relationship with the child.” (Maj. opn., ante, at p. 942, italics added; see also id. at fn. 6.) Rather, as both Justice Brennan and Justice White wrote in Michael H., I would hold that “ ‘[w]hen an unwed father demonstrates a fall commitment to the responsibilities of parenthood by “comfing] forward to participate in the rearing of his child,” ... his interest in personal contact with his child acquires substantial protection under the Due Process Clause.’ ” (Michael H., supra, 491 U.S. at p. 143 [109 S.Ct. at p. 2361] (dis. opn. of Brennan, J.); id. at p. 160 [109 S.Ct. at p. 2352] (dis. opn. of White, J.).)
Second, the majority is incorrect in asserting that a majority of the high court in Michael H. held that a natural father has a liberty interest only where he successfully establishes a substantial relationship with his child. In fact, none of the justices in Michael H. adopted that position. To begin with, Justice Scalia’s plurality opinion in Michael H. expressly rejected the very distinction the majority now purports to draw, i.e., that creation of a natural father’s liberty interest depends on the existence of “an established parental relationship.” (Michael H., supra, 491 U.S. at p. 123 [109 S.Ct. at p. 2342].)
Moreover, the majority errs in reading Justice Brennan’s Michael H. dissent as concluding that a liberty interest arises only if the natural father successfully establishes an “existing personal relationship” with his child. (Maj. opn., ante, at p. 941, original italics.) In so reading that dissent, the majority ignores the statement from Justice Brennan’s opinion that I have quoted above, which focuses on whether the natural father “ ‘demonstrates a full commitment to the responsibilities of parenthood by “comfing] forward to participate in the rearing of his child” . . . .’” (Michael H., supra, 491 U.S. at p. 143 [109 S.Ct. at p. 2352] (dis. opn. of Brennan, J.).) Furthermore, [957]in relying exclusively on another statement in Justice Brennan’s dissent, the majority fails to appreciate the factual context of the Michael H. case. As the majority notes (maj. opn., ante, at p. 941), Justice Brennan observed in Michael H. that a liberty interest arises when a biological link is “combined with a substantial parent-child relationship.” (Michael H., supra, 491 U.S. at p. 142 [109 S.Ct. at p. 2352] (dis. opn. of Brennan, J.).) However, this statement, unlike the broader statement that I have quoted above, simply reflected the facts of the case, which were that the natural father had established a relationship with his child. Thus, contrary to the majority’s assertion, nothing in Justice Brennan’s dissent even suggests, let alone “expressly” holds (maj. opn., ante, at p. 942), that a natural father’s constitutional liberty interest arises only where he successfully establishes a relationship with his child.
On the contrary, to the extent Justice Brennan, and those who joined his dissent, expressed an opinion in Michael H. regarding the constitutional rights of a natural father in circumstances specifically like Jerry’s, their views are consistent with, not contrary to, mine. In finding that the natural father in Michael H. had a constitutional liberty interest, Justice Brennan emphasized that the natural father “ha[d] from the beginning sought to strengthen and maintain his relationship with” his child. (Michael H., supra, 491 U.S. at p. 143 [109 S.Ct. at p. 2352] (dis. opn. of Brennan, J.).) Although he also noted at one point that the natural father had “lived with [the child] as her father” {ibid.), later in his opinion Justice Brennan rejected the plurality’s suggestion “that the length of time that [the natural father] and [the child] lived together is relevant to the question whether they have a liberty interest in their relationship with each other.” (Id. at p. 144, fn. 3 [109 S.Ct. at p. 2353] (dis. opn. of Brennan, J.).) Justice Brennan’s determination that this factor is irrelevant is inconsistent with the majority’s conclusion that Justice Brennan would have recognized a constitutional liberty interest only where a substantial parent-child relationship has been established. On the other hand, it is consistent with my conclusion and the conclusion we reached in Kelsey S., supra, 1 Cal.4th 816, that, under the high court cases, a constitutional liberty interest exists where the biological father promptly comes forward to participate in child rearing.
The third, and perhaps most compelling, reason that I disagree with the majority is that its conclusion and its interpretation of Michael H., supra, 491 U.S. 110, are directly contrary to our decision in Kelsey S. As I have explained, in Kelsey S., we held that “a biological father has a constitutionally cognizable opportunity interest in developing a relationship with his child.” (Kelsey S., supra, 1 Cal.4th at p. 844, italics added.) Thus, “[i]f an [958]unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities ... his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.) In reaching this conclusion, we interpreted Lehr, supra, 463 U.S. 248, as holding “that a father need only make a reasonable and meaningful attempt to establish a relationship, not that he must be successful against all obstacles.” (Kelsey S., supra, 1 Cal.4th at p. 837.) We also observed that, for a majority of the high court in Michael H., “the determinative factor” was not whether a substantial relationship exists, but “whether a biological father has attempted to establish a relationship with his child.” (Kelsey S., supra, 1 Cal.4th at p. 837, italics added.) Thus, in Kelsey S., we expressly rejected both the majority’s analysis and its current interpretation of the separate opinions in Michael H.
The majority does not acknowledge this obvious inconsistency. Instead, it virtually ignores Kelsey S., summarily noting that it was an “adoption case[]’’ that “concerned a child bom to two unwed parents, not, as here, a child bom into a marriage.” (Maj. opn., ante, at p. 943.) Thus, the majority’s refusal to follow Kelsey S. in this case turns solely on the marital status of the child’s mother, Dawn.
The most obvious flaw in the majority’s position is its failure to explain why the fact that Kelsey S. involved adoption and this one does not warrants ignoring our reading in Kelsey S. of Michael H., supra, 491 U.S. 110. As I have just noted, in Kelsey S., we concluded that “the determinative factor” for “a majority of the justices” in Michael H. was not whether a substantial relationship exists, but “whether a biological father has attempted to establish a relationship with his child.” (Kelsey S., supra, 1 Cal.4th at p. 837, italics added.) That Kelsey S. was an adoption case has no bearing on this conclusion. Thus, even were I to agree with the majority that Dawn’s marital status is relevant to the existence of Jerry’s constitutional right, unlike the majority, I would not feel free to ignore our pronouncements in Kelsey S. regarding the majority view in Michael H., which, of course, was not an adoption case but was a case similar to the one before us.
In any event, I cannot adopt the majority’s implicit conclusion that the existence of a natural father’s constitutional right turns on the marital status of the mother. Nothing in our analysis in Kelsey S. supports drawing a distinction on this basis. On the contrary, in determining there the constitutional rights of a natural father, we relied on all of the high court cases addressing this question, whether they involved a single mother (e.g., Lehr, supra, 463 U.S. 248) or a married one (e.g., Michael H., supra, 491 U.S. [959110]). (Kelsey S., supra, 1 Cal.4th at pp. 830-839.) Thus, nothing in Kelsey S. supports the majority’s attempt to limit the relevance of that decision to the adoption context.
Moreover, the majority’s focus on the mother’s marital status is inconsistent with the majority view in Michael H. There, Justice White flatly declared that, under the high court cases, a natural father’s rights are not “dependent on the marital status of the mother or biological father.” (Michael H., supra, 491 U.S. at p. 157 [109 S.Ct. at p. 2360] (dis. opn. of White, J.).) Similarly, Justice Brennan, also writing for Justices Marshall and Blackmun, explained that “marriage is not decisive in answering the question whether the Constitution protects the parental relationship under consideration.” (Id. at p. 144 [109 S.Ct. at p. 2353] (dis. opn. of Brennan, J.).) Justice Stevens “d[id] not agree” with the plurality’s view that a natural father could never “have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.” (Id. at p. 133 [109 S.Ct. at p. 2347] (conc. opn. of Stevens, J.).) In disagreeing with this position, Justice Stevens implicitly rejected the majority’s view that, simply because a mother is married, a natural father does not have a constitutional liberty interest in a relationship with his child. Thus, a majority of the high court in Michael H. declined to make the existence of a natural father’s constitutional right depend on the very factor the majority now cites in refusing to follow Kelsey S., supra, 1 Cal.4th 816.
Furthermore, inherent in the majority’s conclusion that the mother’s marital status is determinative of the natural father’s constitutional rights is a balancing of interests that should be irrelevant to determining the existence of a constitutional right. To hold, as does the majority, that the existence of Jerry’s constitutional right depends on Dawn’s marital status is “to say that whether [Jerry] . . . ha[s] a liberty interest varies with the State’s interest in recognizing that interest, for it is the State’s interest in protecting the marital family—and not [Jerry] and [the child’s] interest in their [potential] relationship with each other—that varies with the status of [Dawn] and [Frank’s] relationship.” (Michael H., supra, 491 U.S. at p. 146 [109 S.Ct. at p. 2354] (dis. opn. of Brennan, J.).) However, under the “established framework” for analyzing due process claims, we should not “consider the State’s interest in limiting the extent of the procedures that will attend the deprivation of [a constitutional] interest” until after we determine that “the person claiming constitutional protection has an interest that the Constitution recognizes . . . .” (Michael H., supra, 491 U.S. at p. 145 [109 S.Ct. at p. 2354] (dis. opn. of Brennan, J.); see also Roth, supra, 408 U.S. at pp. 570-571 [92 S.Ct. [960]at pp. 2705-2706] [“weighing process” is “part of any determination of the form of hearing” required, but “to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake”].) Accordingly, in" concluding that Jerry has no constitutional right, the majority necessarily, and improperly, has balanced his interests against the state’s countervailing interests.
As Justice Brennan explained in Michael H., the majority’s emphasis on Dawn’s marital status “conflates the question whether a liberty interest exists with the question what procedures may be used to terminate or curtail it.” (Michael H., supra, 491 U.S. at p. 145 [109 S.Ct. at pp. 2353-2354] (dis. opn. of Brennan, J.).) We should not “look[] at the relationship that the unwed father seeks to disrupt, rather than the one he seeks to [develop,] in determining whether he has a liberty interest in his [potential] relationship with his child. To do otherwise is to allow the State’s interest in [preventing] the relationship to play a role in defining the ‘liberty’ that is protected by the Constitution.” {Ibid.) “It is a bad day for due process when the State’s interest in [preventing] a parent-child relationship is reason to conclude that [the opportunity to develop] that relationship is not part of the ‘liberty’ protected by the Fourteenth Amendment.” (Id. at pp. 146-147 [109 S.Ct. at p. 2354] (dis. opn. of Brennan, J.); see also State ex rel. Roy Allen S. v. Stone (1996) 196 W.Va. 624 [474 S.E.2d 554, 563] (Stone) [mother’s preexisting marriage to another man “alter[s] the nature and weight of the State’s interests,” not the existence of the natural father’s liberty interest].) In short, the majority identifies no valid basis for refusing to follow Kelsey S., supra, 1 Cal.4th 816.3
After announcing that its task is to determine whether the interest Jerry asserts “finds support in our history, our traditions, and the conscience of our people” (maj. opn., ante, at p. 940), the majority makes no independent determination of this question, instead choosing to rely exclusively on Michael H., supra, 491 U.S. 110. As I have demonstrated, and as we held in Kelsey S., supra, 1 Cal.4th at page 837, Michael H. does not support the majority’s conclusion. Moreover, had the majority independently considered the question, it would have found that in at least 20 states alleged natural fathers in circumstances similar to Jerry’s are entitled to some form of a hearing before they are forever excluded from the lives of their biological [961]children.4 This fact further demonstrates the unsoundness of the majority’s conclusion.5
Finally, in holding that Jerry has no constitutional liberty interest on the facts of this case, the majority creates a potential anomaly under California law. Under decisions of our appellate courts, despite Frank’s status as the child’s presumed father, Jerry possibly could be held liable some day for the financial support of the child with whom he now seeks to develop a relationship. (See Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232 [34 Cal.Rptr.2d 868] (Alicia R.); County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976 [17 Cal.Rptr.2d 797] (Leslie B.).) As a result, although in the majority’s view the presumption prevents a biological father who seeks involvement in his child’s life from even getting a hearing, under existing California precedent it may not prevent the state from later seeking financial support from that same father. The state may thus invoke the presumption to prevent a natural father from obtaining the benefits of fatherhood, but the same natural father may not be able to invoke it to avoid the financial burdens of fatherhood. This result seems contradictory and inequitable. In my view, a biological connection that is sufficient to establish a natural father’s potential financial responsibility for his child should also give rise to a constitutional interest in the opportunity to develop a relationship with that [962]child where, as here, the natural father promptly comes forward and demonstrates a full commitment to his parental responsibilities.6
C. Due Process Entitles Jerry to a Hearing
The state procedures at issue here extinguish Jerry’s constitutional liberty interest in the opportunity to develop a relationship with his alleged natural child without affording him any opportunity to be heard. As we have explained, “the reasonableness of a statutory limitation on the right to offer proof of parentage depends on circumstances prevailing in each particular case.” (Lisa R., supra, 13 Cal.3d 636, 651, fn. 17.) We must balance Jerry’s constitutional liberty interest against the state’s “interest in precluding [Jerry] from offering evidence of parentage . . . .” (Id. at p. 650; see also Michael H, supra, 491 U.S. at p. 148 [109 S.Ct. at p. 2355] (dis. opn. of Brennan, J.) [due process requires consideration of state’s “interest in curtailing the procedures accompanying the termination of a constitutionally protected interest”].) Among the factors that influence our determination are “ ‘the extent to which [Jerry] may be “condemned to suffer grievous loss,” ’ ” and “the permanency of the threatened loss.” (Santosky v. Kramer (1982) 455 U.S. 745, 758 [102 S.Ct. 1388, 1397, 71 L.Ed.2d 599] (Santosky).)
1. Jerry’s Interest Is Substantial
As I have already explained, the United States Supreme Court has considered the nature of a natural father’s interest in his child several times. In those decisions, the high court has stressed that “[t]he rights to conceive and to raise one’s children” are “ ‘essential’ ” and “ ‘far more precious . . . than property rights’ [citation].” (Stanley v. Illinois (1972) 405 U.S. 645, 651 [92 S.Ct. 1208, 1212, 31 L.Ed.2d 551] (Stanley).) In Lehr, describing the “significance” of a natural father’s “biological connection,” the court explained: “[I]t offers the natural father an opportunity that no other male possesses to [963]develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.” (Lehr, supra, 463 U.S. at p. 262 [103 S.Ct. at p. 2993], fn. omitted.) Citing this passage from Lehr, we have observed that the high court decisions “reinforce[] the importance of genetic parents’ rights. [Citations.]” (Johnson v. Calvert (1993) 5 Cal.4th 84, 98-99 [19 Cal.Rptr.2d 494, 851 P.2d 776] (Johnson).)
More generally, in cases involving termination of parental rights, the high court has stated that a successful termination action “work[s] a unique kind of deprivation. [Citations.]” (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [101 S.Ct. 2153, 2160, 68 L.Ed.2d 640] (Lassiter).) In this context, the court has declared that “a natural parent’s ‘desire for and right to “the companionship, care, custody, and management of his or her children” ’” is a “commanding” interest. (Santosky, supra, 455 U.S. at p. 758 [102 S.Ct. at p. 1397].) In a termination action, the state attempts “ ‘to destroy permanently all legal recognition of the parental relationship.’ [Citation.]” (M.L.B. v. S.L.J. (1996) 519 U.S. 102, _ [117 S.Ct. 555, 570, 136 L.Ed.2d 473], italics added (M.L.B.).) A successful termination action therefore “is ‘irretrievablfy] destructive]’ of the most fundamental family relationship. [Citation.]” (Id. at p. _ [117 S.Ct. at p. 566].) In short, “[flew forms of state action are both so severe and so irreversible.” (Santosky, supra, 455 U.S. at p. 759 [102 S.Ct. at p. 1398]; see also M.L.B., supra, 519 U.S. at p._[117 S.Ct. at p. 565] [“ ‘[flew consequences of judicial action are so grave as the severance of natural family ties’ ”].) A termination decision that “effectively foreclose^] the possibility” that a child will “ever know his natural parents” results in a “lossfl [that] cannot be measured.” (Santosky, supra, 455 U.S. at pp. 760-761, fn. 11 [102 S.Ct. at p. 1398].) “A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.”7 (Lassiter, supra, 452 U.S. at p. 27 [101 S.Ct. at p. 2160],' fn. omitted.)
From Jerry’s perspective, California’s decision to extinguish his constitutional liberty interest in his potential relationship with his alleged biological child has the effect of a successful termination proceeding. It “ ‘destroy[s] permanently all legal recognition’ ” of his biological relationship to the child. (M.L.B., supra, 519 U.S. at p.__[117 S.Ct. atp. 570].) Jerry’s interest in this case, therefore, is substantial. Accordingly, the Legislature’s refusal to afford him any process can withstand constitutional scrutiny only if [964]California “has an interest so powerful that it justifies granting [him] no hearing before terminating his parental rights.” (Michael H., supra, 491 U.S. at p. 154 [109 S.Ct. at p. 2358], original italics (dis. opn. of Brennan, J.).)
2. The State’s Interests Do Not Justify the Absence of Process
Although the state interests Dawn invokes here—the child’s welfare and family stability—are unquestionably significant, on the facts of this case, they do not justify extinguishing Jerry’s constitutional liberty interest without affording him any process. As this court has previously observed, due process generally requires that an individual receive “notice and some form of hearing before” the state deprives him of a protected liberty interest. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 308 [138 Cal.Rptr. 53, 562 P.2d 1302] (Kash).) In some circumstances, important governmental interests may justify postponing notice and hearing until after the deprivation. (Ibid.) However, even in these circumstances, “an opportunity to be heard may only be postponed, not entirely eliminated.”8 (Kash, supra, 19 Cal.3d at p. 308.) In the context of proceedings to terminate parental rights, the high court has explained: “[T]hat important liberty interests of the child and its foster parents may also be affected by a permanent neglect proceeding does not justify denying the natural parents constitutionally adequate procedures.” (Santosky, supra, 455 U.S. at p. 754, fn. 7 [102 S.Ct. at p. 1395], original italics.) Similarly, in this case, that affording Jerry an opportunity to be heard might affect liberty interests of Dawn, Frank, and the child does not justify denying Jerry constitutionally adequate procedures.
Indeed, in previous cases involving parental rights, we have found the state’s legitimate and substantial interest in the child’s welfare insufficient to justify extinguishing a natural parent’s right without a hearing or categorically impairing that right. In Lisa R., we balanced state and private interests to determine whether an alleged natural father could be “denied the opportunity to be heard in protection of a basic [constitutional] right.” (Lisa R., supra, 13 Cal.3d at p. 647.) We concluded that the state’s legitimate interest in the child’s welfare did not justify denying the natural father a hearing, [965]noting that a court had to determine his parental fitness even if he established his biological paternity. (Id. at pp. 648-650 & fn. 14.) Similarly, in the case now before us, “it is important to keep in mind that the question at issue ... is not whether [Jerry] should be granted visitation or custody but simply whether he can take the first step in any such proceeding.” (Michael H., supra, 491 U.S. at p. 161, fn. 3 [109 S.Ct. at p. 2361] (dis. opn. of White, J.).) Jerry’s constitutional liberty interest “only entitlefs] [him] to an opportunity to request to invoke his parental rights; ... it would remain for [a] court to determine issues of visitation, custody, etc., based on the best interests of the child. [Citations.]”9 (Stone, supra, 474 S.E.2d at p. 566.)
In Kelsey S., we again considered the extent to which the state’s interest in the child’s welfare may justify categorically impairing a natural father’s constitutional rights. ■ There, we held that the state may not constitutionally authorize an adoption over the objection of a natural father who demonstrates a full commitment to his parental responsibilities, absent a showing of his unfitness. (Kelsey S., supra, 1 Cal.4th at p. 821.) In reaching this conclusion, we rejected the notion that the state’s interest in placing the child with an adoptive couple, rather than with the natural father, justified adoption without the natural father’s consent. We explained: “[T]he constitutionally valid objective is the protection of the child’s well-being. We cannot conclude in the abstract that adoption is itself a sufficient objective to allow the state to take whatever measures it deems appropriate. Nor can we merely assume, either as a policy or factual matter, that adoption is necessarily in a child’s best interest. This assumption is especially untenable in light of the rapidly changing concept of family.” (Id. at p. 845, second italics added.)
Here, too, we cannot “merely assume, either as a policy or factual matter,” that simply because Dawn was married at the time of the child’s conception and birth, Jerry’s exclusion from the child’s life “is necessarily in [the] child’s best interest.” (Kelsey S., supra, 1 Cal.4th at p. 845.) There may very well be circumstances in which allowing contact with the natural father will be in the child’s best interest, even where a presumed father existed at the time of the child’s birth.10 Thus, assuming that Jerry is the child’s natural father, a court must make an individualized determination of the child’s best interest in determining the extent, if any, of Jerry’s parental rights. (See [966]Stanley, supra, 405 U.S. at p. 656 [92 S.Ct. at p. 1215] [state may not justify denying alleged natural father a hearing by asserting that unmarried fathers are seldom fit].)
Nor does the state’s interest in family stability justify denying Jerry constitutionally adequate procedures. “Not all petitions challenging the paternity of marital children threaten” this state interest. (Stone, supra, 474 S.E.2d at p. 565.) As I have explained, in determining whether the state may constitutionally deny an alleged natural father an opportunity to assert his claim, we must consider the “circumstances prevailing in each particular case.” (Lisa R., supra, 13 Cal.3d at p. 651, fn. 17.) In this case, as previously noted, Dawn continued to have contact with Frank during the three-month period she openly lived with Jerry, so Frank “was well aware of the liaison between [Dawn] and [Jerry].” (Michael H., supra, 491 U.S. at p. 162 [109 S.Ct. at p. 2362] (dis. opn. of White, J.).) Because Frank probably “already knows the child is not his, [it is] less likely that the paternity hearing will disrupt an otherwise harmonious and apparently exclusive marital relationship.” (Michael H., supra, 491 U.S. at p. 120, fn. 1 [109 S.Ct. at p. 2340] (plur. opn. of Scalia, J.); see also Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272, 1284 [7 Cal.Rptr.2d 460] [no threat to family unity where man and pregnant woman marry knowing that another man is the unborn child’s biological father]; In Interest of J.W.T, supra, 872 S.W.2d at p. 197 [state’s interest in family stability diminished given mother’s choice “ ‘to engage in sexual relations outside of marriage’ ”].) As also previously noted, Jerry submitted evidence that Dawn initially intended to marry him and raise children with him, and that he took action in anticipation of these events. In previous cases involving conflicting claims of parentage, we have given controlling weight to the “acted-on intention” of the parties to have a child. (Johnson, supra, 5 Cal.4th at p. 93.) Accordingly, on the facts of this case, the state’s interest in family stability does not justify extinguishing Jerry’s constitutional liberty interest without affording him an opportunity to be heard. A court’s ability, and obligation, to consider the potential impact on the marital family in determining Jerry’s custody and visitation request are adequate to protect the state’s interest in family stability. (See Stone, supra, 474 S.E.2d at pp. 566-567; see also Boddie v. Connecticut (1971) 401 U.S. 371, 381 [91 S.Ct. 780, 787-788, 28 L.Ed.2d 113] (Boddie) [complete denial of due process is impermissible where “alternatives exist” to protect state’s interests].)
D. The State Has Considerable Discretion Regarding the Form of Hearing
My conclusion that Jerry has a constitutional right that entitles him to due process gives rise to the question of precisely what process is due. “Due [967]process of law guarantees ‘no particular form of procedure . . . ” (Mitchell v. W. T. Grant Co. (1974) 416 U.S. 600, 610 [94 S.Ct. 1895, 1801, 40 L.Ed.2d 406].) Rather, as noted, we use “a weighing process” to determine “the form of hearing required . . . .” (Roth, supra, 408 U.S. at p. 570 [92 S.Ct. at p. 2705], italics omitted.) Thus, “[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved . . . .” (Boddie, supra, 401 U.S. at p. 378 [91 S.Ct. at p. 786].)
Although the constitutional right Jerry asserts here is essentially of the same type and magnitude as the right that the natural father asserted in Kelsey S., the countervailing interests in this case are more substantial than in the latter case. First, the natural father in Kelsey S. had a constitutional right that the prospective adoptive parents did not have. He therefore had a constitutional priority that the state could not extinguish absent a showing of unfitness. (Kelsey S., supra, 1 Cal.4th at p. 849.) Here, Jerry enjoys no constitutional priority. An exercise of his right necessarily conflicts with the right of Dawn and Frank to form a family unit and raise the child as they see fit. (See Stanley, supra, 405 U.S. at p. 651 [92 S.Ct. at pp. 1212-1213] [due process clause protects the “integrity of the family unit”].) Moreover, the natural father in Kelsey S. sought sole custody of the child, i.e., a unified, although perhaps single-parent, family. By contrast, Jerry seeks only legal custody and visitation. The state has a strong interest in fostering, at the outset of a child’s life, a unified family with a single father. Thus, the state’s preference that the father be the man who is married to the mother rather than the natural father is not arbitrary or irrational. Furthermore, although Jerry’s opportunity interest is significant, it is less weighty than the interest of an unmarried father who has already formed a relational bond with the child. (See Lehr, supra, 463 U.S. at p. 262, fn. 18 [103 S.Ct. at p. 2994] [father who has played substantial role in child’s rearing has “greater claim to constitutional protection” than “mere biological parent”].)
Therefore, although alleged natural fathers like Jerry have the right to some form of process, given the competing interests, the state has considerable leeway to build into that process a preference for the presumed father as the child’s sole father. Not only may the state deny the natural father visitation or custody based on the child’s best interest (see § 7637), it may, for example, establish a rebuttable presumption that giving sole custody to the mother and presumed father, and denying any rights to a natural father who is not the presumed father, best serves a newborn child’s interests. Moreover, the state has considerable discretion to prescribe the procedure, including the applicable standard of proof, governing an alleged natural [968]father’s attempt to rebut that presumption. Even absent a statute, the child’s interest in family stability and unity would justify in many, and perhaps most, circumstances a court’s decision to deny the natural father any access to a child who resides in a reasonably stable two-parent home consisting of the mother and presumed father.
However, as I have explained, no credible state interest justifies completely denying the natural father an opportunity to rebut an explicit or implicit presumption in favor of the presumed father—for example, to show by clear and convincing evidence that no stable family unit exists, or that the mother and presumed father do not meet certain basic standards of fitness. A denial of this minimal due process disregards the natural father’s constitutional right without advancing a legitimate government interest in the child’s welfare.
Finally, the state also has considerable flexibility in designing procedures to protect the privacy and other interests of the parties. As a majority of the high court held in Michael H., “[i]t is no conceivable denial of constitutional right for a State to decline to declare facts unless some legal consequence hinges upon the requested declaration.” (Michael H., supra, 491 U.S. at p. 126 [109 S.Ct. at p. 2344] (plur. opn. of Scalia, J.); see also id. at pp. 132-133 (conc. opn. of Stevens, J.).) Thus, the state may, for example, provide for an in camera hearing during which an alleged father must first show that, assuming his biological paternity, granting him any relief or legal right would be in the child’s best interests. If he does not make this preliminary showing, he could not proceed to establish his paternity. (See Stone, supra, 474 S.E.2d at pp. 567-568; see also Weidenbacher v. Duclos, supra, 661 A.2d at p. 1000 [court must make preliminary determination regarding child’s best interest].) The state also may require expeditious adjudication of these issues, so as to minimize disruption to the child’s life. In short, the state may constitutionally establish procedures that promote the stability of the traditional family unit.
III. Conclusion
In finding that Jerry is constitutionally entitled to some form of process under the facts of this case, I “do not intend, in any way, to denigrate the importance of the traditional family unit or the institution of marriage. To the contrary, [I] continue to believe that the family provides the foundation upon which our society is built and through which its most cherished values are best transmitted. [My view] of this case merely recognizes the reality [969]that nontraditional living arrangements do exist, that recognized liberty interests can arise from such arrangements, and that furtherance of the State’s interest in preserving family and marital stability does not require an absolute bar to the rights of putative natural fathers.” (Stone, supra, 474 S.E.2d at p. 569.) Therefore, I would affirm the judgment of the Court of Appeal denying the petition for writ of mandate.
Mosk, J., concurred.
All further statutory references are to the Family Code.
The majority asserts that the high court in Lehr, supra, 463 U.S. 248, “never clearly decided to what extent the unwed father in that case had a protected liberty interest in the opportunity to develop a relationship with his child . . . .” (Maj. opn., ante, at p. 943.) As I have demonstrated, and as we explained in Kelsey S., supra, 1 Cal.4th 816, the high court in [955]Lehr clearly did decide that the natural father had some constitutionally protected opportunity interest, even if it did not explain the full “extent” of that right.
Justice Kennard’s concurring opinion, which also refuses to follow Kelsey S. because of Dawn’s marital status (conc. opn. of Kennard, J., ante, at pp. 946-947), is similarly unpersuasive.
See R.A.J. v. L.B.V. (1991) 169 Ariz. 92 [817 P.2d 37]; Willmon v. Hunter (1988) 297 Ark. 358 [761 S.W.2d 924]; R. McG. v. J. W. (1980) 200 Colo. 345 [615 P.2d 666]; Weidenbacher v. Duclos (1995) 234 Conn. 51 [661 A.2d 988]; Green v. Long (Del. Fam.Ct. 1988) 547 A.2d 630; Johnson v. Studley-Preston (1991) 119 Idaho 1055 [812 P.2d 1216, 1219-1221]; Simcox v. Simcox (1989) 131 Ill.2d 491 [137 Ill.Dec 664, 546 N.E.2d 609, 612]; In re Marriage of Slayton (1996) 277 Ill.App.3d 574 [214 Ill.Dec 117, 660 N.E.2d 562]; K.S. v. R.S. (Ind. 1996) 669 N.E.2d 399; Smith v. Jones (La.Ct.App. 1990) 566 So.2d 408; Finnerty v. Boyett (La.Ct.App. 1985) 469 So.2d 287; Turner v. Whisted (1992) 327 Md. 106 [607 A.2d 935]; In re Paternity of B.J.H. (Minn.Ct.App. 1998) 573 N.W.2d 99; Kelly v. Cataldo (Minn.Ct.App. 1992) 488 N.W.2d 822, 826-828; Ivy v. Harrington (Miss. 1994) 644 So.2d 1218; J. M. L. v. C. L. (Mo.Ct.App. 1976) 536 S.W.2d 944, 945-947; Matter of Paternity of Adam (1995) 273 Mont. 351 [903 P.2d 207]; M.F. v. N.H. (1991) 252 N.J.Super. 420 [599 A.2d 1297]; Richard W v. Roberta Y (1995) 212 A.D.2d 89 [629 N.Y.S.2d 512]; Gorton v. Gorton (1984) 123 Misc.2d 1034 [475 N.Y.S.2d 767]; Gregory v. McLemore (Okla.Ct.App. 1995) 899 P.2d 1189; In Interest of J.W.T. (Tex. 1994) 872 S.W.2d 189; McDaniels v. Carlson (1987) 108 Wn.2d 299 [738 P.2d 254]; In re Paternity of T.R.B. (1990) 154 Wis. 2d 637 [454 N.W.2d 561]; see also C.C. v. A.B. (1990) 406 Mass. 679 [550 N.E.2d 365, 372, fn. 10] (leaving open possibility of action “where, due to the actions of the mother, [the natural father] ha[s] not yet formed a substantial relationship with the child”); Stone, supra, 474 S.E.2d at page 566 (leaving open possibility of action where natural father “proves that he would share in the care of, responsibility for, and support of the child but for the mother’s repudiation”).
In her concurring opinion, Justice Kennard also overlooks this fact in declaring that “society has consistently denied to the biological father in these circumstances any opportunity to establish parental rights over the' child of another man’s wife.” (Cone. opn. of Kennard, J., ante, at p. 945, original italics.)
The majority correctly notes that Alicia R. and Leslie B. are factually distinguishable from this case. (Maj. opn., ante, at p. 943.) However, the majority ignores the court’s broad declaration in Leslie B. that the presumption of a husband’s paternity “cannot be applied” to “protect[] [a natural father] from assuming any responsibility for a child he fathered.” (Leslie B., supra, 14 Cal.App.4th at p. 980, original italics; see also id. at p. 981 [“presumption was never intended as a financial prophylactic for men who have affairs with married women”].) The court reasoned that the presumption applies only where its underlying policies “would be furthered by [its] application ... to the facts” of the particular case. (Id. at p. 980.) The court noted, for example, that we refused to apply the presumption in In re Lisa R. (1975) 13 Cal.3d 636 [119 Cal.Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017] (Lisa R.), because, given the presumed father’s death, the policy of protecting the family unit could not be served. (Leslie B., supra, 14 Cal.App.4th at p. 981.) Of course, in this case, we cannot predict how the facts will later develop or whether a court will some day conclude, based on those facts, that Jerry is financially liable for Dawn’s child.
The majority thus errs in discounting Jerry’s interest in an accurate determination of paternity. (Maj. opn., ante, at pp. 943-944, fn. 7.)
Michael H. does not constitute an exception to this rule. As I have previously explained, in concurring in the judgment in that case, Justice Stevens concluded that California’s statutory scheme was “consistent with the Due Process Clause” (Michael H., supra, 491 U.S. at p. 136 [109 S.Ct. at p. 2349] (conc. opn. of Stevens, J.)) because it afforded the alleged natural father “a fair opportunity to show that he [was the child’s] natural father” and that the child’s “interests would be served by granting him visitation rights.” (Id. at p. 135 [109 S.Ct. at p. 2348] (conc. opn. of Stevens, J.).)
I refer to the “best interest” standard because of existing California family law statutes. (See § 7637 [judgment in paternity action may address any matter in child’s “best interest,” including custody and visitation issues].)
For example, exclusion of the natural father may not be in the child’s best interest where the mother intends to leave her husband soon after the child’s birth, or where the husband ceases to have contact with the mother and the child, or is abusive, or is incarcerated for an extended period.