concurring:
Implicit in Judge Rowley’s opinion is a recognition that Jerry Williams, who claims that he is the biological father of Jeremiah James Fornell, has standing to obtain an adjudication of his claim even though the child was conceived and born to a woman while she was married to another who is presumed to be the father. This issue has not previously been before the appellate courts of this Commonwealth and, because of the conflicting interests involved, merits consideration.
The courts of this Commonwealth have held that there is a strong presumption that a child born to a married woman is the child of the mother’s husband. Connell v. Connell, 329 Pa.Super. 1, 6, 477 A.2d 872, 875 (1984). The presumption of legitimacy can be rebutted only by evidence which is clear and convincing. Burston v. Dodson, 257 Pa.Super. 1, *58711, 390 A.2d 216, 221 (1978). The issue requiring consideration in this appeal, however, is whether the presumption may under any circumstances be rebutted by one who contends that he is the biological father of a child born to a mother during her marriage to another.
This issue focuses upon the conflicting interests of the contending biological father to obtain an adjudication of his paternity claim and of the state to protect the family and the presumed legitimacy of the child. “The Commonwealth,” it has been said, “has legitimate and strong interests in ‘the strengthening and encouragement of family life for the protection and care of children,’ and in affording legitimacy to children.” P.B.C. v. D.H., 396 Mass. 68, 73, 483 N.E.2d 1094, 1097 (1985) (citation omitted). Nevertheless, in my judgment, it is not necessary to deny a contending biological father access to the courts in order to preserve the interests of the state. The family relationship and the legitimacy of children born to a married woman can adequately be protected by the strong presumption of legitimacy.
Guarantees of due process and equal protection add weight to the need to allow a contending biological father to litigate his private interest in the children whom allegedly he has sired. Anonymous v. Anonymous, 472 So.2d 640 (Ala.Civ.App.1984) (putative father of child born to married woman is entitled to opportunity to present evidence to rebut presumption that mother’s husband was father); 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) (unwed father has standing to challenge statutory presumption that child of married woman is legitimate issue of marriage where both mother and presumed father are dead and state has custody of child); R. McG. v. J. W., 200 Colo. 345, 615 P.2d 666 (1980) (statute which deprives putative father of access to courts to assert claim of paternity violates principles of equal protection); Pritz v. Chesnul, 106 Ill.App.3d 969, 62 Ill.Dec. 605, 436 N.E.2d 631 (1982) (putative father of illegitimate child has constitutional right *588to legal forum with due process to establish natural parentage and paternal rights). Cf. Smith v. Lane, 101 Misc.2d 615, 421 N.Y.S.2d 786 (1979) (putative father allowed to sue to establish paternity — no discussion of standing); Rayson v. Gabby, 57 A.D.2d 437, 395 N.Y.S.2d 290 (1977) (same). See also: Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Contra: P.B.C. v. D.H., supra; Petitioner F. v. Respondent R., 430 A.2d 1075 (Del. 1981); A v. X, Y, and Z, 641 P.2d 1222 (Wyo.1982).
Although appellee had standing to assert and obtain an adjudication of his claim of paternity, I agree with Judge Rowley that the evidence of appellee’s paternity was inadequate as a matter of law to overcome the presumption that Jeremiah was the legitimate son of his mother and his mother’s husband. Therefore, I agree that the trial court’s award of Jeremiah’s custody to appellee should be reversed.
I also agree with Judge Rowley that a remand is necessary to permit the trial court to apply a “clear and convincing” standard regarding appellee’s evidence that he is the biological father of Miranda.