I respectfully dissent.
The best interests of the child are crucial; they must be decided on the trial level, not by the Court of Appeal. The trial court recognized that Claralyn should not reside with Gary but allowed Gary visitation. As a former stepfather having an interest in Claralyn's welfare, Gary may pursue his visitation right even if declared not to be the natural father. (Civ. Code, § 4601)
Claralyn, eight years old, very well could disagree with the court's conclusion to deny admission of the blood tests as she grows older. The trial court has indicated that neither Gary nor Ranona can provide the stable residential setting to which the child is entitled. The trial court should admit the blood test evidence, protect and carefully explain to Claralyn the child's right to continue a relationship with Gary if she wishes, but provide the grandparents an avenue by which to proceed toward permanency in providing a stable home for Claralyn.
A public-policy argument supporting the finality of paternity judgments in this case is questionable, recognizing that the majority's conclusion will place child, mother, father and grandparents into a lockstep determination, unassailable in the future, when the very cornerstone of the decision is based upon an erroneous premise that Gary is the father of Claralyn. This conclusion affects "the most fundamental right a child possesses in our system of jurisprudence." (Ruddock v. Ohls (1979)91 Cal.App.3d 271, 278 [154 Cal.Rptr. 87].)
As the majority recognizes, Claralyn's grandparents are not barred from litigating Claralyn's paternity by the doctrines of res judicata or collateral estoppel. The grandparents were not parties or privies with Gary in the prior actions and Ranona was not a party in those actions. Not only is there no showing in the record that the grandparents were given notice and an adequate *Page 88 opportunity to be heard, but the grandparents had no standing to assert nonpaternity in the prior actions.
I would reverse and remand for a full hearing on paternity with the best interests and the future of the child the prime concern of the court.
Appellants' petition for a hearing by the Supreme Court was denied December 15, 1983. Bird, C.J., was of the opinion that the petition should be granted. *Page 89