specially concurring:
I concur in the majority’s result based on the constitutional infirmity in section 19-6-107(1)(b), C.R.S. 1973 (1978 Repl. Vol. 8), but I analyze the putative father’s standing to seek a declaration of paternity in terms of due process rather than equal protection.
The majority finds that because the statute allows the mother to seek a determination of paternity in a non-spousal father, and the claiming natural father has no corresponding right to seek a determination of his paternity, the classification discriminates on the basis of gender. The state interest in this statutory scheme, according to the majority, is preserving the integrity of family units already in existence and fostering child rearing in harmonious family settings. Consequently, the statute may be read as protecting the mother’s family unit (because her husband is presumed to be the child’s father) without providing the same protection for the putative father’s family unit.
I believe that the legislature may give preference in paternity proceedings to a mother’s family unit in which the child resides without running afoul of constitutional guarantees of equal protection. Usually, no one questions the identity of the mother because of the mother’s pregnancy and delivery of the child. Paternity is not as easy to determine.
The statutory preference for the mother’s family unit, however, does not entitle the state to exclude by the conclusive presumption in section 19-6-107(1) the putative father’s right to a court hearing on his claimed *355parenthood. The United States Supreme Court has recognized the due process right of a natural father, absent a finding that he is unfit, to maintain a parental relationship with his children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). A California Supreme Court decision, In re Lisa R., 13 Cal.3d 636, 532 P.2d 123, 119 Cal.Rptr. 475, cert. denied, 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 682 (1975), gave an unwed father standing to challenge a California statute’s presumption that a child of a married woman is a legitimate issue of the marriage.1 The unwed father prevailed because such a presumption is contrary to due process which requires an opportunity for one to be heard in protection of the basic right to conceive and raise one’s children. Stanley v. Illinois, supra; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
Due process consists of those procedural safe-guards designed to accord to the individual “the right to be heard before being condemned to suffer grievous loss of any kind” as a result of governmental acts or omissions. Joint Anti-Fascists Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646-7, 95 L.Ed. 817, 852 (1951) (Frankfurter, J., concurring). The nature of due process means that the procedures needed to minimize error and reduce the dangers of arbitrary action vary “according to specific factual contexts.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321 (1960).
In order to determine if due process provides the putative father standing to rebut the presumption that the child is the issue of the mother’s husband, we must weigh competing private and state interests. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).2 Here I believe we should weigh the putative father’s indication of interest in the child as described in the majority opinion with the state’s interest in protecting the integrity of the family unit in which the child resides.3 Had the father not made continuing efforts to maintain contact with the child and indicated his desire to support the child, the state’s interest would prevail. But here, where R.McG. has no alternate remedy to protect his interest as the child’s natural father, I think we must find that he has standing *356to assert those interests in a court proceeding. Otherwise, his constitutional right to due process of law in order to protect his basic right to conceive and raise his child has been denied.4
Like the Colorado presumption, the California presumption could be rebutted only by the woman and her husband.
Such a weighing process in Stanley was struck in favor of the unwed father’s right to submit evidence in rebuttal of a presumption that he was unfit to care for his illegitimate children. The weighing process in Quilloin found that a court determination of the “best interest” of the child protected the father’s due process rights.
Although the best interests of the child are not at issue in this case, the state has a legitimate interest in protecting the integrity of the family unit in which the child resides as opposed to protecting, under an equal protection analysis, the family unit of the putative father in which the child does not reside.
His standing to bring a court action to determine paternity is limited by statute to five years for actions to declare the non-existence of a presumed father and child relationship.