Whilde v. Whilde , 298 Neb. 473 ( 2017 )

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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
WHILDE v. WHILDE
Cite as 298 Neb. 473
H annah Whilde, appellee, v.
M argaret Whilde, appellant.
___ N.W.2d ___
Filed December 22, 2017. No. S-17-045.
1. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
2. Parent and Child. During a period in which an individual stands in
loco parentis to a child, he or she has put himself or herself in the
situation of a lawful parent by assuming the obligations incident to the
parental relationship, without going through the formalities necessary to
a legal adoption, and the rights, duties, and liabilities of such person are
the same as those of the lawful parent.
3. ____. Because in loco parentis status is transitory, once the person
alleged to be in loco parentis no longer discharges all duties incident
to the parental relationship, the person is no longer in loco parentis.
Termination of the in loco parentis relationship also terminates the cor-
responding rights and responsibilities afforded thereby.
4. Child Custody: Modification of Decree: Proof. Ordinarily, custody
of a minor child will not be modified unless there has been a material
change in circumstances showing that the custodial parent is unfit or that
the best interests of the child require such action. First, the party seeking
modification must show a material change in circumstances, occurring
after the entry of the previous custody order and affecting the best inter-
ests of the child. Next, the party seeking modification must prove that
changing the child’s custody is in the child’s best interests.
Appeal from the District Court for Otoe County: David K.
A rterburn, Judge. Affirmed.
Anthony W. Liakos, of Govier, Katskee, Suing & Maxell,
P.C., L.L.O., for appellant.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
WHILDE v. WHILDE
Cite as 298 Neb. 473
Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
R iedmann, Judge.
Miller-Lerman, J.
NATURE OF CASE
Margaret Whilde appeals the order of the district court for
Otoe County, Nebraska, which modified a prior child custody
order filed by a Texas court, awarded sole legal and physi-
cal custody of the child to Hannah Whilde, and ordered that
Margaret be granted no further rights of custody or visitation
with regard to the child. We affirm the district court’s order.
STATEMENT OF FACTS
Margaret and Hannah met in 1999 and became involved in
a romantic relationship during which they lived together. They
lived in Mexico when they first met, but they later moved to
Lincoln, Nebraska, for a time before they moved to Austin,
Texas, in 2003. After moving to Texas, both Margaret and
Hannah had their last names legally changed to “Whilde.” The
parties disputed whether they had a commitment ceremony
soon after they met in 1999 and whether they considered them-
selves to be married, but the record indicates that the two had
never been legally married.
In January 2010, Hannah gave birth to a baby girl. The child
had been conceived by artificial insemination, and any paren-
tal rights of the biological father were terminated by a court
in Texas. Margaret and Hannah were still in a relationship
and living together at the time the child was born. Although
the parties dispute whether there was an intent on the part of
either Margaret or Hannah for Margaret to be considered a
parent to the child, and although Margaret testified that she
planned to adopt the child, Margaret conceded that she had not
formally adopted the child.
The relationship between Margaret and Hannah began to
decline after the child’s birth. Although the parties dispute
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WHILDE v. WHILDE
Cite as 298 Neb. 473
the reasons and the circumstances surrounding their separa-
tion, in November 2011, Hannah moved back to her parents’
home in Otoe County and she took the child with her. Soon
after Hannah left Texas, Margaret filed an action in the dis-
trict court for Travis County, Texas, in which she sought to
have determined her legal rights with respect to the child. The
Texas court entered an initial order in which it determined that
Margaret had legal standing to assert rights with respect to
the child and set forth certain rights and duties that Margaret
and Hannah would share as “joint managing conservators” of
the child.
After further proceedings and hearings, the Texas court
filed an additional order on September 27, 2012. The order
was denominated “Temporary Orders,” and in the order, the
court appointed Hannah as “Temporary Parent Sole Managing
Conservator” and Margaret as “Temporary Non-Parent
Possessory Conservator” of the child. The order then set forth
certain rights and duties that each party would have during her
periods of possession of the child, certain rights and duties
that each party would have at all times as conservator, and
certain rights that Hannah would have exclusively. The rights
that Hannah was granted exclusively included, inter alia, the
right to direct the moral and religious training of the child, the
right to designate the primary residence of the child without
geographic restriction, and the right to represent the child in
legal actions and to make other decisions of substantial legal
significance concerning the child.
The court then set forth terms for each party’s periods
of possession of the child. The order provided that Hannah
would have possession of the child at all times other than
times specified in the order when Margaret would have pos-
session. The order generally provided that Margaret would
have possession for one 4-day period each month and that
Margaret’s period of possession would increase to include
certain specified periods after the child reached the age of 3.
With regard to support, the order provided that neither party
was obligated to pay direct child support to the other and that,
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WHILDE v. WHILDE
Cite as 298 Neb. 473
instead, each party would be responsible for expenses that
arose during her period of possession. Margaret was ordered
to provide health insurance for the child beginning November
24, 2012. The order stated that the temporary orders would
“continue in force until the signing of the final order or until
further order of this Court.” It appears that no further orders
were filed by the Texas court until after the present action was
filed in Nebraska.
On June 6, 2014, Hannah filed in the district court for
Otoe County an application to register the Texas court’s
September 27, 2012, order pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat.
§§ 43-1226 through 43-1266 (Reissue 2016). She requested
that the Nebraska court set aside the Texas order and modify
the custody of the child in accordance with Nebraska law.
Hannah alleged that she and the child had lived in Nebraska
City, Nebraska, since November 2011 and that Margaret
was currently living in Auburn, Nebraska, and had lived in
Nebraska for more than 1 year. Hannah alleged that she was
the biological mother of the child and that the biological
father had been denied any parental rights by the Texas court.
Hannah further alleged that no enforcement action had been
taken with regard to the Texas court order since its entry and
that no effort had been taken to bring about entry of a final
order. Hannah alleged that it would be in the best interests of
the child that Hannah be given sole legal and physical custody
of the child and that Margaret should have no rights to custody
or visitation of the child.
In her response, Margaret admitted much of the allegations
in Hannah’s complaint, but she requested that the complaint to
modify the Texas order be dismissed and, to the extent Hannah
requested a suspension of Margaret’s visitations rights, that
such request be denied.
Margaret moved back to Texas in late June 2014, shortly
after Hannah filed this action. It appears that Margaret’s con-
tact with the child was minimal thereafter. Hannah presented
evidence at the trial in this matter that after Margaret moved
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WHILDE v. WHILDE
Cite as 298 Neb. 473
back to Texas, Margaret had experienced significant mental
health issues resulting in hospitalization, including time in a
long-term psychiatric hospital in New York.
In December 2015, Hannah filed a motion in this action
seeking to suspend Margaret’s contact with the child because
of Margaret’s mental health issues. In February 2016, the
district court preliminarily ordered that there be no contact
between Margaret and the child, pending the court’s determi-
nation of Hannah’s motion. In a March 10, 2016, order, the
court provided that pending trial in this matter, Margaret would
be allowed 15 minutes each week of supervised contact with
the child by telephone or “[S]kype.” On March 11, Margaret
filed an application for order to show cause, in which she
alleged that Hannah had prevented her from exercising the
visitation ordered in the March 10 order; Margaret requested
an order for Hannah to show cause why she should not be held
in contempt for failing to allow the ordered visitation. In an
order entered March 21, the court addressed various matters,
including the following:
Visitation issue is further addressed by the Court.
Court finds that Defendant [Margaret] has not pro-
vided records of her current treatment as previously
ordered. Court finds that said records from the New York
Psychiatric Institute shall be provided to counsel for
Plaintiff [Hannah] on or before April 1, 2016. Fifteen-
minute weekly Skype visitation shall recommence on
April 6, 2016, at 7:00 p.m[.] Central Time. Weekly
Skype visitation shall take place every Wednesday at
7:00 p.m. Central Time for 15 minutes and may be
supervised by a person acceptable to Plaintiff. Said
supervisor shall have the ability to terminate a Skype
visitation if Defendant engages in any inappropriate con-
versation with the child.
No order to show cause pursuant to contempt action
filed by Defendant will be entered based on the foregoing
order and based on Defendant’s unavailability to be pres-
ent to prosecute such a contempt action.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
WHILDE v. WHILDE
Cite as 298 Neb. 473
In July 2016, the district court communicated with the
Texas court regarding jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act. As a result of such
communication, the Texas court relinquished its jurisdiction of
the case, finding that Nebraska had become the home state of
the child. The district court in Nebraska also found that juris-
diction of the case under the act was in Nebraska.
Trial in the matter was held on August 2 and 3, 2016, and
the court issued its opinion and order on December 16. This
appeal is taken from the December 16 order. In the order, the
court set forth much of the history recounted above. The court
noted that the parties’ testimony regarding their relationship
and Margaret’s relationship with the child varied widely. The
court noted Hannah’s testimony to the effect that their rela-
tionship began to deteriorate after Hannah became pregnant.
Hannah testified that Margaret’s behavior became erratic and
that she became afraid to leave the child alone with Margaret.
Hannah testified that Margaret did not spend significant time
with the child and that Hannah was the primary caregiver.
Hannah testified that Margaret began to cut Hannah off from
contact with others and that eventually Hannah decided
she needed to remove herself and the child from what she
described as a “dysfunctional environment.” Hannah obtained
the assistance of her sister to leave Texas and return with the
child to Nebraska.
Contrary to Hannah’s testimony, Margaret testified that she
was actively involved in the child’s care and that she provided
financial support by working outside the home while Hannah
stayed at home with the child. She testified that she had initi-
ated proceedings to adopt the child and that a final hearing
had been scheduled for shortly after the day Hannah moved
herself and the child out of their home. Margaret testified that
she was shocked when she learned that Hannah had moved out
with the child. Shortly after they moved, Margaret filed the
action in Texas to secure her rights with regard to the child,
and she moved to Nebraska in April 2013 to better exercise
her rights of visitation.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
WHILDE v. WHILDE
Cite as 298 Neb. 473
It appears that the parties generally followed the visitation
order after Margaret moved to Nebraska. But Hannah decided
to curtail Margaret’s visitation after an incident in May 2014,
when Hannah asserted that Margaret kept the child beyond her
allotted time. Hannah called the police to remove the child from
Margaret’s home. As a result of the police visit to Margaret’s
home, Hannah learned that the condition of Margaret’s home
was such that Hannah did not think it an appropriate place for
the child. Hannah presented witness testimony and other evi-
dence to the effect that Margaret maintained a home that was
extremely dirty and unsafe for the child. After the May 2014
incident, Hannah filed for and obtained a harassment protec-
tion order against Margaret, and she filed the present action to
modify custody.
Hannah also presented evidence at the trial regarding
Margaret’s mental health issues after Margaret returned to
Texas in 2014. Margaret generally acknowledged such mental
health issues, but she presented evidence to support her conten-
tion that she had undergone treatment and at the time of trial
was capable of caring for the child.
The district court in its December 16, 2016, order stated
that the evidence showed that with regard to financial support,
Margaret had provided the majority of support while Hannah
and the child lived with her in Texas. However, after Hannah
and the child left, Margaret’s financial support had been lim-
ited to support provided during her visitations in 2013 and
2014, and after Margaret returned to Texas in 2014, she had
provided only occasional gifts.
In determining custody issues, the district court first con-
sidered the applicability of Texas law and the effect of the
September 27, 2012, order entered by the Texas court. The
district court determined that because the child and both par-
ties had lived in Nebraska for over 1 year before this action
was filed, Nebraska law applied and controlled whatever legal
rights the parties might have. Regarding the applicability of
the Texas order, the district court stated that by its terms, the
order was temporary and was not contemplated to be a final
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
WHILDE v. WHILDE
Cite as 298 Neb. 473
order. However, the district court determined that the Texas
order was the operative order except to the extent modified by
the district court.
The court therefore considered the effect of the Texas court’s
determination that Margaret held the status of a “temporary
non-parent possessory conservator.” The court noted that there
was not a direct counterpart to such status under Nebraska
law. However, the court determined that such status under
Texas law was most comparable to the concept of an in loco
parentis relationship under Nebraska law as set forth in cases
such as Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d
66 (2011).
The district court determined that the evidence in this case
established that a significant relationship existed between
Margaret and the child, from the child’s birth in January 2010
until Hannah and the child moved to Nebraska in November
2011. The court therefore acknowledged that an in loco paren-
tis relationship “at one time did exist” between Margaret and
the child. The court noted, however, that under Nebraska law,
the establishment of an in loco parentis relationship does not
forever grant parental rights to a nonbiological and nonadop-
tive parent and that once a person alleged to be in loco parentis
no longer discharges all the duties incident to the parental rela-
tionship, the person is no longer in loco parentis.
The court determined that in the present case, the in loco
parentis relationship that had once existed between Margaret
and the child had ceased in the years after Margaret moved
back to Texas in June 2014. The court recognized that in May
2014, Hannah had unilaterally cut off Margaret’s access to
the child, but the court determined that Hannah had legiti-
mate reasons for doing so. The court noted evidence that
“Margaret’s mental health quickly deteriorated, resulting in
approximately two years of unstable living conditions and
repeated hospitalizations.” The court recognized that at the
time of the trial, Margaret appeared “to have regained much
of what she has lost” and that she “was articulate in her pre-
sentation and has regained employment and a more stable
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WHILDE v. WHILDE
Cite as 298 Neb. 473
living environment.” The court stated that the question, how-
ever, was whether in the course of those 2 years the in loco
parentis relationship had been severed; the court determined
that it had.
The court concluded that “the in loco parentis relationship
that [Margaret] previously enjoyed has been severed largely
through her own failings as a care provider and extended his-
tory of mental instability.” The court found that the child’s
best interests would not be served by any further court-ordered
contact between Margaret and the child. The court further
found that Hannah had established a safe and secure home
for the child. The court concluded that a material change
of circumstances existed requiring the modification of the
Texas court’s September 27, 2012, order. The court there-
fore awarded sole legal and physical custody of the child to
Hannah. The court ordered that Margaret was granted no rights
of custody and visitation with the child and that she had no
further obligation to support the child.
Margaret appeals the district court’s December 16, 2016,
order.
ASSIGNMENTS OF ERROR
Margaret claims that the district court erred when it (1)
found that her in loco parentis relationship with the child had
been severed, (2) found that such relationship had been severed
as a result of events that had occurred in Margaret’s life, and
(3) granted Margaret no rights of custody or visitation with the
child. Margaret also claims that the district court abused its dis-
cretion when it allegedly suspended contact between Margaret
and the child as a discovery sanction.
STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).
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WHILDE v. WHILDE
Cite as 298 Neb. 473
ANALYSIS
Court Did Not Suspend
Margaret’s Visitation as
a Discovery Sanction.
We first address Margaret’s claim that the district court
abused its discretion because it suspended contact between
Margaret and the child as a discovery sanction. Margaret
argues that in the order filed March 21, 2016, the court made
her continued visitation with the child contingent upon her
providing Hannah with copies of her mental health records;
she asserts that this order was an inappropriate sanction for
her failure to comply with a discovery request. In response,
Hannah contends that the court did not limit Margaret’s visita-
tion as a discovery sanction but instead did so to protect the
child’s best interests pending a determination of Margaret’s
mental health status.
We do not agree with Margaret’s characterization of the
order, and we reject this assignment of error. As recounted
above, Margaret’s mental health status became an issue in
these proceedings, and in December 2015, Hannah filed a
motion seeking to suspend Margaret’s contact with the child.
In response to Hannah’s motion, the district court in February
2016 entered a preliminary order that there be no contact
between Margaret and the child, pending the court’s determi-
nation of Hannah’s motion. In a March 10, 2016, order, the
court provided that pending trial in this matter, Margaret would
be allowed 15 minutes each week of supervised contact with
the child by telephone or Skype. Shortly thereafter, Margaret
alleged that Hannah had prevented her from exercising the
visitation ordered in the March 10 order; Margaret sought
to have Hannah held in contempt for failing to allow the
ordered visitation.
In the March 21, 2016, order, the court addressed these and
other matters. The court noted that Margaret had not provided
certain treatment records as had been previously ordered. So
the court ordered Margaret to provide the records to Hannah’s
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WHILDE v. WHILDE
Cite as 298 Neb. 473
counsel on or before April 1. The court went on to order that
Margaret’s weekly Skype visitations with the child would
recommence on April 6 and continue weekly thereafter. The
court stated that based in part on “the foregoing order,” it
would not enter an order to show cause as sought in the con-
tempt action filed by Margaret.
We do not read the order of March 21, 2016, as imposing a
sanction on Margaret for her failure to comply with a discov-
ery order. Instead, we read the order as addressing Margaret’s
failure by setting a specific date—April 1—by which she was
ordered to provide the records that were the subject of the
prior order. Then, as a separate matter, the court responded to
Margaret’s request that Hannah be held in contempt for failing
to comply with the order regarding Margaret’s Skype visitation
with the child. The court granted Margaret relief by ordering
such visitation to recommence on April 6.
Although the court addressed both the discovery issue and
the visitation issue in the same order, we do not read the March
21, 2016, order as connecting the two issues in the manner
alleged by Margaret. The court did not suspend Margaret’s vis-
itation as a sanction for her failure to comply with the earlier
discovery order. Instead, the court set specific dates by which
each party would comply with previous orders—Margaret was
to comply with the discovery order by April 1, and Hannah
was to comply with the visitation order beginning April 6.
Rather than suspending Margaret’s visitation, the court ordered
visitation to resume. Also, although Margaret was ordered to
provide the mental health records on a date prior to the date
visitation was ordered to resume, the court did not condition
the resumption of visitation on Margaret’s compliance with the
order to provide records.
We do not find that the court suspended Margret’s visita-
tion as a discovery sanction, and we therefore find no merit
to the claim the court abused its discretion by imposing such
a sanction.
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WHILDE v. WHILDE
Cite as 298 Neb. 473
District Court Did Not Err When It Determined
That Court-Ordered Visitation With
Margaret Was No Longer in
the Child’s Best Interests.
Margaret’s remaining assignments of error are directed at
the district court’s determinations regarding her in loco paren-
tis status with respect to the child and its ultimate conclusion
that she was no longer entitled to rights of custody and visi-
tation with the child. We find no error in the district court’s
determinations and conclusions with regard to Margaret’s
rights of custody and visitation.
We note first that Margaret does not appear to take issue
with the district court’s conclusion that her legal status as
determined in the Texas court’s order was comparable to in
loco parentis status under Nebraska jurisprudence. We find
no error in this determination or in the district court’s deter-
mination that based on the Texas order and the evidence
regarding the time while the child was living in Texas, at
one time, Margaret had in loco parentis status with respect to
the child.
[2] We have recognized the doctrine of in loco parentis
in child custody and visitation cases wherein we have stated
that during a period in which an individual stands in loco
parentis to a child, he or she has put himself or herself in
the situation of a lawful parent by assuming the obligations
incident to the parental relationship, without going through
the formalities necessary to a legal adoption, and the rights,
duties, and liabilities of such person are the same as those
of the lawful parent. Windham v. Griffin, 295 Neb. 279, 887
N.W.2d 710 (2016); Latham v. Schwerdtfeger, 282 Neb. 121,
802 N.W.2d 66 (2011); Weinand v. Weinand, 260 Neb. 146,
616 N.W.2d 1 (2000). In the order it filed on September 27,
2012, the Texas court appointed Margaret as “Temporary Non-
Parent Possessory Conservator,” while it appointed Hannah as
“Temporary Parent Sole Managing Conservator.” The court
set forth certain rights and duties that each party would have
during her periods of possession of the child, certain rights
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and duties that each party would have at all times as conser-
vator, and certain rights that Hannah would have exclusively.
As we read the Texas order, we agree with the district court’s
conclusion in this case that the rights Margaret was given
by the Texas court’s order were equivalent to the rights one
might be awarded based on in loco parentis status under
Nebraska law. By denominating Margaret as a “Non-Parent
Possessory Conservator,” the Texas court appeared to recog-
nize that although Margaret was not a biological parent to the
child and she had not gone through the formalities necessary
to legally adopt the child, Margaret had put herself in the situ-
ation of a lawful parent by assuming the obligations incident
to the parental relationship and that she was therefore entitled
to certain rights of “possession” and rights as a “conservator,”
which rights appear to be similar to rights of custody and visi-
tation under Nebraska law.
In addition to agreeing with the district court’s conclusion
that the rights Margaret was granted under the Texas order
were similar to rights one might be awarded as a result of in
loco parentis status under Nebraska law, we also agree with
the district court’s conclusion, based on evidence provided
in the present proceeding, that at the time the Texas order
was filed, Margaret had what would be considered an in
loco parentis relationship with the child under Nebraska law.
Evidence presented at the trial in this proceeding indicates that
from the child’s birth in January 2010 until the time Hannah
and the child left Texas in November 2011, Margaret had
assumed obligations with respect to the child that were of the
sort that are incident to the parental relationship. Therefore, in
the present proceeding in Nebraska, the district court correctly
concluded that at one time, Margaret had in loco parentis sta-
tus with respect to the child.
Margaret does not dispute this finding; instead, Margaret
claims that the district court erred when it determined that
her in loco parentis status had been severed as a result of her
actions and when it concluded that continued custody and
visitation with Margaret were not in the child’s best interests.
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WHILDE v. WHILDE
Cite as 298 Neb. 473
As set forth below, we conclude that the district court did not
err in these respects.
Although in past cases we have recognized that in loco
parentis status may entitle a party to certain rights of custody
and visitation, we have recognized that in loco parentis status
is not equivalent to status as a parent and does not entitle a
person to all the same rights that a legal parent would enjoy.
See Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710
(2016). In Windham v. Griffin, we reasoned that “unlike bio-
logical and adoptive parenthood, the status of in loco parentis
is temporary, flexible, and capable of being both suspended
and reinstated” and that therefore “an individual standing in
loco parentis, which is temporary in nature, is not the func-
tional equivalent of a lawful parent for all purposes or in all
contexts.” 295 Neb. at 286, 887 N.W.2d at 715-16.
We have further explained that “in loco parentis is a
­common-law doctrine that gives standing to a nonparent to
exercise the rights of a natural parent when the evidence
shows that the nonparent’s exercise of such rights is in the
child’s best interests.” In re Guardianship of Brydon P.,
286 Neb. 661, 673, 838 N.W.2d 262, 271 (2013). In In re
Guardianship of Brydon P., we recognized that in loco paren-
tis is a standing doctrine and that in loco parentis status is
transitory; we held that the trial court in that case did not err
when it rejected a child’s grandmother’s request for perma-
nent parental status under the doctrine of in loco parentis.
Therefore, under our precedent, in loco parentis is not a per-
manent status; its presence, however, establishes one’s stand-
ing to seek rights of custody and visitation at a specific time
and in a specific proceeding.
[3] Because in loco parentis status is transitory and not per-
manent, it may be lost. We have noted that application of the
in loco parentis doctrine “depends upon the circumstances in
existence when the nonparent claims a child’s best interests
lie in allowing him or her to exercise parental rights.” Id. at
674, 838 N.W.2d at 272. But because in loco parentis sta-
tus is transitory, we have specifically stated that “[o]nce the
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person alleged to be in loco parentis no longer discharges all
duties incident to the parental relationship, the person is no
longer in loco parentis” and that “[t]ermination of the in loco
parentis relationship also terminates the corresponding rights
and responsibilities afforded thereby.” In re Interest of Destiny
S., 263 Neb. 255, 261, 639 N.W.2d 400, 406 (2002).
The understanding that in loco parentis status is a transitory
status relevant to one’s standing to seek custody and visitation
informs our review of the district court’s decision in this case.
Margaret’s standing in the present action was not challenged.
At the time Hannah filed this action in the Nebraska district
court, the Texas order granting Margaret certain rights with
regard to the child was still in effect. Therefore, it was clear
that Margaret had an interest and standing in this action, and
she did not need to establish standing by showing that she had
in loco parentis status.
[4] Hannah filed the present action as a request for modifi-
cation of the custody provisions of the Texas order. Ordinarily,
custody of a minor child will not be modified unless there
has been a material change in circumstances showing that
the custodial parent is unfit or that the best interests of the
child require such action. Hopkins v. Hopkins, 294 Neb. 417,
883 N.W.2d 363 (2016). First, the party seeking modification
must show a material change in circumstances, occurring after
the entry of the previous custody order and affecting the best
interests of the child. Id. Next, the party seeking modification
must prove that changing the child’s custody is in the child’s
best interests. Id.
Because it was not necessary to refer to the in loco parentis
doctrine to establish Margaret’s standing in this action, the
question whether Margaret’s in loco parentis relationship with
the child still existed was relevant in this case only to the
extent it was relevant to the court’s consideration of whether
or not it was in the child’s best interests for Margaret to con-
tinue to have rights of custody and visitation. Because the
rights Margaret had under the Texas order were based on legal
concepts similar to our understanding of the in loco parentis
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doctrine, we think that consideration of whether Margaret
continued to maintain such status since the time of the Texas
order is relevant to determining whether there has been a
material change in circumstances and whether modification of
Margaret’s rights is in the child’s best interests.
As we noted in Windham v. Griffin, 295 Neb. 279, 887
N.W.2d 710 (2016), an individual standing in loco parentis,
which is temporary in nature, is not the functional equiva-
lent of a lawful parent for all purposes or in all contexts. We
believe that modification of custody is a context in which one
who obtained rights as a result of in loco parentis status will be
considered differently from one who is a lawful parent; there-
fore, whether one has maintained the sort of relationship with
the child that gave rise to in loco parentis status is relevant to
modification of custody and visitation rights, both in determin-
ing whether there has been a material change of circumstances
and whether a modification of custodial and visitation rights is
in the child’s best interests.
We find that in this case, the district court did not abuse its
discretion when it considered the change in Margaret’s rela-
tionship with the child since the time of the Texas order, along
with other factors, and determined that a material change in
circumstances had occurred and that a modification order to
eliminate Margaret’s rights of custody and visitation was war-
ranted. We note first that the evidence showed that a change
had occurred in the circumstances that had led to the deter-
mination that Margaret had at one time held in loco parentis
status with regard to the child. Such determination had been
based on evidence that after her birth, the child lived with
Margaret and Hannah and that Margaret had supported the
child. But the evidence presented at the trial in 2016 showed
that for a considerable time before the trial, Margaret had not,
to use in loco parentis terminology, “assumed the obligations
incident to the parental relationship.”
The evidence indicated that after the Texas order and until
2014, Margaret’s support of the child had been limited to sup-
port she provided while the child was in her possession. The
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evidence also showed that Margaret had not provided health
insurance for the child as had been directed in the Texas order.
The evidence further showed that since 2014, Margaret had
assumed few of the obligations incident to the parental rela-
tionship. Margaret’s contact with the child had been minimal,
and she had provided almost no support other than occa-
sional gifts.
Margaret contends that these facts cannot be used against
her, because since 2014, Hannah had prevented her from hav-
ing contact with the child. But there was also evidence that
the lack of contact was the result of Margaret’s mental health
issues, and the district court found that Hannah had valid rea-
sons for limiting Margaret’s contact with the child. Whether
Margaret’s lack of contact was the fault of Hannah, the result
of issues beyond Margaret’s control, or Margaret’s own actions,
it is clear that for 2 years prior to the trial in this case, Margaret
had not been performing the obligations incident to the paren-
tal relationship. To the extent Margaret presented evidence that
she attempted to maintain a relationship with the child, such
attempts appear to have been focused on contact and visitation
with the child and they do not appear to have been attempts to
perform obligations incident to the parental relationship, such
as offering to provide financial support for the child. The evi-
dence in this case clearly established a material change in cir-
cumstances since the time the Texas order was entered, because
the nature and extent of Margaret’s relationship with the child
had changed materially.
With respect to the best interests of the child, we also
believe that the evidence supported the district court’s deter-
mination that it was in the child’s best interests to termi-
nate Margaret’s court-ordered rights of custody and visitation.
Because the relationship had diminished over time, there was
less justification to legally require custody and visitation. As
this case illustrates, it is within the court’s discretion to con-
sider the fact that in the first instance, Margaret’s rights were
based on her having had in loco parentis status rather than
being a legal parent. Because her rights were initially based on
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maintaining an existing relationship that was beneficial to the
child rather than maintaining a parental relationship that was
favored by the law, the fact that the relationship had dimin-
ished over time is of greater weight in this circumstance than
it would be were the court considering the rights of a legal
parent. The law would ordinarily favor maintaining the rela-
tionship with a legal parent. See, e.g., Windham v. Griffin, 295
Neb. 279, 887 N.W.2d 710 (2016) (discussing parental prefer-
ence). But in this case, it was valid for the court to consider
whether maintaining the relationship through court-ordered
rights of custody and visitation was in the child’s best interests
when Margaret had not been assuming the obligations incident
to the parental relationship. We conclude that the court did
not abuse its discretion when it determined that it was not in
the child’s best interests to continue Margaret’s court-ordered
rights of custody and visitation.
CONCLUSION
Having rejected Margaret’s assignments of error, we affirm
the district court’s order.
A ffirmed.
Wright, K elch, and Funke, JJ., not participating.