Noland v. Yost ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/15/2023 09:07 AM CST
- 568 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568Brian M. Noland, appellant,
v. Erin N. Yost, appellee.
___ N.W.2d ___
Filed December 15, 2023. No. S-22-254.
1. Appeal and Error. When assignments of error are presented in the
argument section of an appellate brief, rather than a designated assign-
ments of error section, an appellate court may proceed as though the
party failed to file a brief (providing no review at all) or, alternatively,
may examine the proceedings for plain error.
2. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
3. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
4. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to the appellant prior to the order
from which the appeal is taken.
8. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
9. Final Orders: Appeal and Error. Whether the effect of an order is
substantial depends on whether it affects with finality the rights of the
parties in the subject matter.
- 569 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 56810. ____: ____. An order affects a substantial right when the right would
be significantly undermined or irrevocably lost by postponing appel-
late review.
11. ____: ____. To be appealable, an interlocutory order must satisfy
the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2022) and, where applicable, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016).
12. Parent and Child: Words and Phrases. A person standing in loco
parentis to a child is one who has put himself or herself in the situation
of a lawful parent by assuming the obligations incident to the paren-
tal relationship, without going through the formalities necessary to a
legal adoption.
13. Parent and Child: Intent: Proof. The assumption of the relationship of
in loco parentis is a question of intention, which may be shown by the
acts and declarations of the person alleged to stand in that relationship.
14. Parent and Child. The primary consideration in an in loco parentis
analysis is whether the person seeking in loco parentis status assumed
the obligations incident to a parental relationship. These obligations
include providing support for the child and providing day-to-day care
for the child.
15. Parent and Child: Standing: Words and Phrases. The doctrine of in
loco parentis is a common-law doctrine that gives standing to a non-
parent to exercise the rights of a natural or adoptive parent when the
evidence shows the nonparent’s exercise of such rights is in the child’s
best interests.
16. Parent and Child. In loco parentis status is not equivalent to status as a
parent and does not entitle a person to all the same rights a legal parent
would enjoy.
17. ____. Unlike biological and adoptive parenthood, the status of in loco
parentis is temporary, flexible, and capable of being both suspended
and reinstated.
18. ____. Under the common law, the in loco parentis relationship may
be abrogated at will either by the party standing in loco parentis or by
the child.
19. ____. Once a person alleged to be in loco parentis stops assuming
the obligations incident to the parental relationship, the person no
longer stands in loco parentis. Termination of the in loco parentis rela-
tionship also terminates the corresponding rights and responsibilities
afforded thereby.
20. Parental Rights. Natural parents have a fundamental right to make
decisions concerning the care, custody, and control of their children.
- 570 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 56821. Parent and Child: Child Custody. When the custody decision of a fit
natural parent is subject to judicial review, the court must accord at least
some special weight to the parent’s own determination.
22. Constitutional Law: Parental Rights: Child Custody. Because natu-
ral and adoptive parents have a fundamental right to make decisions
concerning the care, custody, and control of their minor children, which
is constitutionally protected, custody disputes between a natural or
adoptive parent and a nonparent are governed by the parental prefer-
ence doctrine.
23. Parent and Child: Child Custody: Presumptions: Proof. The parental
preference doctrine establishes a rebuttable presumption that the best
interests of a minor child are served by placing custody of the child with
his or her parent and, absent proof that a parent is unfit or has forfeited
the right to custody, a parent may not ordinarily be deprived of the cus-
tody of a minor child. It may be possible to overcome the parental pref-
erence doctrine by showing the best interests of the child lie elsewhere,
but such circumstances must be exceptional. In order for exceptional
circumstances to negate the parental preference doctrine, there must be
proof of serious physical or psychological harm to the child or a sub-
stantial likelihood of such harm.
24. Parent and Child: Child Custody. The parental preference doctrine
applies in custody disputes between a natural or adoptive parent and one
who stands in loco parentis.
25. Divorce: Parent and Child. When a stepparent divorces a child’s bio-
logical or adoptive parent, he or she is no longer that child’s stepparent.
26. Divorce: Jurisdiction: Visitation: Proof. In a divorce proceeding, the
court has jurisdiction to allow stepparent visitation when the stepparent
proves that an in loco parentis relationship was established with a step-
child during the marriage and visitation is in the child’s best interests.
27. Parent and Child. It is a stepparent’s desire to remain in an in loco
parentis relationship with his or her spouse’s child that gives rise to the
rights and corresponding responsibilities usually reserved for natural or
adoptive parents.
28. ____. Parental preference principles do not insulate parental decisions
from judicial review.
29. Parental Rights. A biological parent’s rights do not extend to erasing an
in loco parentis relationship the parent fostered between his or her minor
child and a former partner.
30. Parent and Child: Standing: Presumptions: Proof. It is presumed
that a child’s best interests are served by maintaining the family’s
privacy and autonomy, but that presumption must give way where the
child has established strong psychological bonds with a person who,
- 571 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568although not a biological parent, has lived with the child and provided
care, nurture, and affection, assuming in the child’s eyes a stature like
that of a parent. Where such a relationship is shown, the child’s best
interests require that the third party be granted standing so as to have
the opportunity to litigate fully the issue of whether that relationship
should be maintained even over a natural parent’s objection.
31. Parental Rights. Parental preference principles do not give natural
parents an absolute right to terminate, at will, an established in loco
parentis relationship.
Appeal from the District Court for Sarpy County: Nathan
B. Cox, Judge. Reversed and remanded for further proceedings.
Ashley L. Albertsen, of Oestmann & Albertsen Law, P.C.,
L.L.O., for appellant.
No appearance by appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In this marital dissolution, the husband sought a judicial
determination that he stood in loco parentis to his wife’s bio-
logical child so that he could litigate issues of custody and
parenting time with his stepchild pursuant to Hickenbottom v.
Hickenbottom. 1 In that case, we held that a dissolution court
has jurisdiction to allow stepparent visitation when an in loco
parentis relationship was established during the marriage and
visitation with the stepparent is in the child’s best interests.
After holding an evidentiary hearing, the district court
entered an order finding that although the husband had estab-
lished an in loco parentis relationship with his stepchild dur-
ing the marriage, he could not litigate issues of custody or
1
Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991),
disapproved on other grounds, Windham v. Griffin, 295 Neb. 279, 887
N.W.2d 710 (2016).
- 572 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568parenting time in the divorce because the wife had effectively
terminated the in loco parentis relationship by cutting off
contact between the child and the husband once the divorce
was filed. The court reasoned that the wife, as a fit natural
parent, had an absolute right based on parental preference
principles to unilaterally terminate the in loco parentis rela-
tionship involving her child, and the court believed it was
“without power to infringe on a biological parent’s consti-
tutional right to raise his/her own child nor overcome the
constitutional presumption that a fit parent acts in the best
interest of his/her child.”
The husband filed this interlocutory appeal to challenge the
district court’s order and, in particular, its legal conclusion that
fit natural parents have an absolute right to unilaterally termi-
nate an established in loco parentis relationship between their
child and a stepparent.
For reasons we will explain, we conclude the husband
has appealed from a final order under Neb. Rev. Stat.
§ 25-1902(1)(b) (Cum. Supp. 2022). And although his appel-
late brief does not have a separate assignments of error sec-
tion, we exercise our discretion to review the district court’s
order for plain error. 2 We ultimately find plain error, and we
therefore reverse the order and remand the cause for further
proceedings.
I. BACKGROUND
Erin N. Yost and Brian M. Noland were married in 2016.
No children were born during their marriage, but Yost and
Noland both had children from prior relationships. Yost’s
youngest daughter, A.B., is the only minor child at issue in
this divorce. She was approximately 2 years old when the
parties married, and she lived exclusively with Yost and
Noland during the marriage. It is undisputed that during the
marriage, the parties told A.B. that Noland was her father,
and she considered him to be her father.
2
See Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2022).
- 573 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 5681. Complaint for Dissolution
In September 2021, Noland filed a complaint seeking to dis-
solve his marriage to Yost. As relevant to the instant appeal, the
complaint alleged that Noland stood in loco parentis to A.B.
and that he had, since 2015, assumed all obligations incident
to a parental relationship. The complaint further alleged that
A.B. “recognizes [Noland] as her father and does not know her
biological father.” In addition to requesting an equitable divi-
sion of the marital estate, Noland’s complaint requested that
he be granted rights of custody, support, and parenting time
with A.B.
Around the time Noland filed the dissolution, Yost unilat-
erally cut off all contact between A.B. and Noland, and Yost
informed A.B. that Noland was not her biological father. Yost
eventually moved with A.B. out of the marital home and has,
since that time, refused Noland’s repeated requests for commu-
nication or parenting time with A.B.
2. Motions Seeking In Loco
Parentis Determination
A few weeks after he filed the dissolution, Noland filed
a motion asking the court to determine that he stood in loco
parentis to A.B. so he could pursue temporary orders relating
to custody, support, and parenting time with his stepdaughter.
In response, Yost filed a motion opposing any determination
that Noland stood in loco parentis to A.B., but her motion
requested temporary child support from Noland in the event the
court determined he stood in loco parentis. Yost also requested
appointment of a guardian ad litem for A.B. on the issue
of custody.
A hearing was set on these competing motions, but it was
continued multiple times for reasons that are not pertinent to
the issue on appeal. Eventually, Noland filed a motion seek-
ing an expedited evidentiary hearing to determine his in loco
parentis status. In support, Noland asserted that Yost had
not been allowing him to have contact with A.B. during the
- 574 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568pendency of the dissolution and that temporary orders were
necessary to “maintain the parent/child bond” that had been
established during the marriage. Noland expressed concern
that if the issue of in loco parentis was not determined on an
expedited basis, A.B. could “lose an in loco parentis parent
just by [the] passage of time.” The district court agreed that
time was of the essence due to the transient nature of the in
loco parentis relationship, and the matter was set for an expe-
dited evidentiary hearing.
3. Evidentiary Hearing and
District Court Order
The court expressly limited the evidentiary hearing to deter-
mining whether A.B. and Noland had established an in loco
parentis relationship during the marriage and, if so, whether
that relationship had been terminated postseparation. The court
received multiple exhibits and heard testimony from 13 wit-
nesses, including Yost and Noland. A.B. did not testify at the
hearing, and nothing in the appellate record indicates a guard-
ian ad litem was appointed for A.B., who was 9 years old and
in the third grade at the time of the hearing.
In an order entered March 17, 2022, the district court
expressly found that Noland had established an in loco paren-
tis relationship with A.B. during the parties’ marriage. In
support of that finding, the court pointed to evidence that
A.B. lived exclusively with Yost and Noland during the mar-
riage, that A.B. was told Noland was her biological father and
believed it, that Yost gave Noland “full access and authority
to act on behalf of the minor child” during the marriage, and
that Noland had assumed the obligations incident to a parental
relationship. The court also found it significant that the par-
ties had initiated stepparent adoption proceedings involving
A.B. within the prior year.
But after expressly finding that an in loco parentis relation-
ship had been established during the marriage, the district
court went on to find the relationship had been terminated
- 575 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568by Yost postseparation. The court reasoned that Yost had a
constitutionally protected right, as A.B.’s natural parent, to
raise her child as she deemed appropriate, and thus had the
right to unilaterally terminate the in loco parentis relationship
between A.B. and Noland. The court found the evidence was
undisputed that when the dissolution was commenced, Yost
severed all contact and interaction between A.B. and Noland.
The court described Yost’s conduct in that regard as “less
than savory and her credibility on many issues is nonexis-
tent,” but it found no evidence that this conduct rendered her
unfit. The court ultimately concluded that Yost
acted completely within her rights to take action to termi-
nate the in loco parentis status. . . . . Therefore, the Court
concludes that a change in status, however unartfully
accomplished, had occurred. Specifically, [Yost] exer-
cised her parental rights and terminated [Noland’s] in
loco parentis status . . . . [T]he Court is without power
to infringe on a biological parent’s constitutional right to
raise his/her own child nor overcome the constitutional
presumption that a fit parent acts in the best interest of
his/her child in this circumstance.
IT IS THERFORE ORDERED, ADJUDGED, AND
DECREED that [Noland] does not stand in loco parentis
to the minor child at issue in this proceeding.
Presumably because the district court believed it was “with-
out power to infringe” on Yost’s desire to terminate the in
loco parentis relationship, the court did not address whether
A.B. wanted to continue the in loco parentis relationship
postdivorce or whether it would be in A.B.’s best interests to
do so.
Noland appeals from this order. He argues the district court
erred in applying parental preference principles to give Yost
an absolute right to unilaterally terminate the established in
loco parentis relationship between A.B. and Noland, and he
contends this misapplication of Nebraska law prevented him
from litigating issues of custody and parenting time in this
- 576 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568divorce under Hickenbottom. Noland argues we have jurisdic-
tion over this interlocutory appeal pursuant to § 25-1902(1)(b)
because the order was made in a special proceeding and
affected a substantial right. Yost did not file a brief on appeal
and is in default.
We moved the appeal to our docket on our own motion
to address the district court’s legal conclusion that parental
preference principles give fit biological parents an absolute
right to unilaterally terminate an in loco parentis relationship
established between their child and a stepparent.
II. ASSIGNMENTS OF ERROR
Noland’s brief does not contain a separate assignments of
error section and instead uses the subheadings in the argument
section of the brief to assert error by the trial court. Nebraska’s
appellate court rules require that an appellant’s brief shall
include, under the appropriate heading, a “separate, concise
statement of each error a party contends was made by the trial
court” and that “[e]ach assignment of error shall be separately
numbered and paragraphed.” 3
[1] We have consistently said that when assignments of
error are presented in the argument section of an appellate
brief, rather than a designated assignments of error section,
an appellate court may proceed as though the party failed to
file a brief (providing no review at all) or, alternatively, may
examine the proceedings for plain error. 4 In this appeal, we
exercise our discretion to examine the district court’s order for
plain error.
3
Id.
4
See, County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d
612 (2023); Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb.
916, 958 N.W.2d 378 (2021), disapproved on other grounds, Clark v.
Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022). Accord Neb.
Rev. Stat. § 25-1919 (Reissue 2016) (“Court of Appeals or Supreme Court
may at its option consider a plain error not specified in appellant’s brief”).
- 577 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568III. STANDARD OF REVIEW
[2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 5
[3] An appellate court independently reviews questions of
law decided by a lower court. 6
[4] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judi-
cial process. 7
IV. ANALYSIS
1. Finality of District Court Order
[5] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 8 Noland filed this inter-
locutory appeal to challenge the March 2022 order conclud-
ing that he could not litigate issues of custody or parenting
time with A.B. in this dissolution, because Yost had unilater-
ally terminated the in loco parentis relationship. In his brief,
Noland argues this was a final order under § 25-1902(1)(b)
because it was entered in a special proceeding and it affects a
substantial right.
This court has characterized marital dissolution as a spe-
cial proceeding 9 and has consistently described child custody
5
In re Guardianship & Conservatorship of Maronica B., 314 Neb. 597, 992
N.W.2d 457 (2023).
6
Haynes v. Nebraska Dept. of Corr. Servs., 314 Neb. 771, 993 N.W.2d 97(2023).
7
County of Lancaster, supra note 4.
8
Charter West Bank v. Riddle, 314 Neb. 263, 989 N.W.2d 428 (2023).
9
See Ropken v. Ropken, 169 Neb. 352, 356, 99 N.W.2d 480, 484 (1959)
(“[a]lthough a divorce action is tried as in equity, it is a special proceeding
provided by statute”). Accord In re Interest of R.G., 238 Neb. 405, 470
N.W.2d 780 (1991) (including divorce in listing of special proceedings),
disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582
N.W.2d 350 (1998).
- 578 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568determinations as special proceedings. 10 We are aware that
a legal treatise has questioned whether dissolutions should
be characterized as special proceedings, 11 but no one chal-
lenges that characterization here, and we are not inclined to
reexamine our precedent on special proceedings in an appeal
we are reviewing only for plain error. Because the dissolution
court’s March 2022 order was entered in a special proceeding,
the jurisdictional question here turns on whether the order
affected a substantial right.
[6-9] A “substantial right” is an essential legal right, not a
mere technical right. 12 A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to the appellant prior to
the order from which the appeal is taken. 13 It is not enough
that the right itself be substantial; the effect of the order on
that right must also be substantial. 14 Whether the effect of an
order is substantial depends on whether it affects with finality
the rights of the parties in the subject matter. 15
[10] Most fundamentally, an order affects a substantial
right when the right would be significantly undermined or
10
See, e.g., Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020); Huskey v.
Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014); Fitzgerald v. Fitzgerald,
286 Neb. 96, 835 N.W.2d 44 (2013); Steven S. v. Mary S., 277 Neb. 124,
760 N.W.2d 28 (2009); State ex rel. Reitz v. Ringer, 244 Neb. 976, 980,
510 N.W.2d 294, 299 (1994) (“custody determinations . . . are considered
special proceedings”), overruled on other grounds, Cross v. Perreten, 257
Neb. 776, 600 N.W.2d 780 (1999).
11
See John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 280 n.180
(2001).
12
In re Interest of Manuel C. & Mateo S., 314 Neb. 91, 988 N.W.2d 520(2023), modified on denial of rehearing 314 Neb. 580, 991 N.W.2d 305.
13
Id.14
In re Interest of K.C., 313 Neb. 385, 984 N.W.2d 277 (2023).
15
Tegra Corp. v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022).
- 579 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568irrevocably lost by postponing appellate review. 16 In the con-
text of dissolution proceedings, we have recognized:
Generally, when multiple issues are presented to the dis-
trict court for simultaneous disposition . . . the court’s
determination of fewer than all the issues presented is
not a final order for the purpose of an appeal. This
is because, absent unusual circumstances, postponing
appellate review until all the issues presented . . . have
been decided will not significantly undermine the rights
affected by the order. 17
Similarly, we have held that dissolution orders deny-
ing temporary relief do not constitute final orders for pur-
poses of § 25-1902, regardless of “the importance of the
rights affected.” 18
But we see nothing temporary about the district court’s
March 2022 order. To the contrary, the order conclusively
determined that although Noland established an in loco paren-
tis relationship with A.B. during the marriage, Yost unilat-
erally terminated that relationship postseparation and, as a
result, Noland no longer stood in loco parentis to A.B. and
could not litigate issues of custody or parenting time in the
divorce. As discussed in more detail later in our opinion, we
held in Hickenbottom 19 that when a stepparent shows that
he or she established an in loco parentis relationship with
a stepchild while married to the stepchild’s natural parent,
the stepparent may pursue visitation with the stepchild in a
subsequent divorce and the court has jurisdiction to award
visitation, even over the natural parent’s objection, when it is
shown to be in the best interests of the child. 20
16
Paxton v. Paxton, 314 Neb. 197, 989 N.W.2d 420 (2023).
17
Tilson v. Tilson, 299 Neb. 64, 71-72, 907 N.W.2d 31, 37 (2018).
18
Id. at 74, 907 N.W.2d at 38.
19
Hickenbottom, supra note 1.
20
Accord Cavanaugh v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197(1992).
- 580 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568Here, the March 2022 order permanently denied Nolan the
opportunity to litigate issues of custody and visitation with
A.B. in this divorce, and it thus affected with finality the step-
parent rights this court recognized in Hickenbottom. Given the
transitory nature of the in loco parentis relationship, 21 and the
fact that the court’s order did not purport to leave any aspect of
the in loco parentis determination for a later trial on the mer-
its, we think this case presents an example of the exceedingly
“unusual circumstance[]” 22 where postponing appellate review
would result in significantly undermining or irrevocably losing
the in loco parentis rights affected by the order. We therefore
conclude the March 2022 order was a final, appealable order
under § 25-1902(1)(b).
[11] We must also consider whether Neb. Rev. Stat.
§ 25-1315 (Reissue 2016) is implicated on these facts,
because it is a well-settled principle that “to be appealable, an
order must satisfy the final order requirements of § 25-1902
and, where implicated, § 25-1315(1).” 23 In Mann v. Mann, 24
we explained:
By its terms, § 25-1315(1) is implicated only when a
case presents more than one claim for relief or involves
multiple parties, and the court enters an order which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties. For purposes
of determining whether a case presents more than one
“claim for relief” under § 25-1315(1), we have said
the term is not synonymous with “issue” or “theory of
21
See, Jennifer T. v. Lindsay P., 298 Neb. 800, 807, 906 N.W.2d 49, 57-58
(2018) (explaining that in loco parentis status is, unlike biological and
adoptive parentage, “‘transitory’”); Whilde v. Whilde, 298 Neb. 473,
486, 904 N.W.2d 695, 704 (2017) (reasoning that “‘unlike biological and
adoptive parenthood, the status of in loco parentis is temporary, flexible,
and capable of being both suspended and reinstated’”).
22
Tilson, supra note 17, 299 Neb. at 72, 907 N.W.2d at 37.
23
Mann v. Mann, 312 Neb. 275, 288, 978 N.W.2d 606, 616 (2022).
24
Id. at 286, 978 N.W.2d at 615.
- 581 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568recovery,” but is instead the equivalent of a “cause of
action.” Because of this construction, our cases some-
times use the phrases “claim for relief” and “cause
of action” interchangeably when analyzing whether
§ 25-1315 is implicated.
Mann was a dissolution modification case, and it involved
multiple claims for relief because the complaint and counter-
claim to modify the decree was joined with a counterclaim for
declaratory judgment. 25 In contrast, this dissolution involves
multiple issues, but it presents just one claim for relief. 26 As
such, § 25-1315 is not implicated here. We have jurisdiction
over this appeal.
2. Plain Error Review
We turn now to the primary issue on appeal: whether the
district court plainly erred in concluding that parental prefer-
ence principles give natural parents an absolute right to uni-
laterally terminate an established in loco parentis relationship
between a stepparent and stepchild, thereby preventing the
stepparent from litigating issues of custody or parenting time
in a divorce.
To examine this issue, we first review the common-law prin-
ciples that govern in loco parentis relationships in Nebraska.
We next review our cases recognizing and applying parental
preference principles in custody disputes between parents and
nonparents. Then, we review our cases applying both these
principles in the context of a stepparent who seeks custody
and parenting time with a stepchild in a divorce proceeding.
25
Mann, supra note 23.
26
See, Quesinberry v. Quesinberry, 2021 Ohio 4680, 185 N.E.3d 1136(2021) (dissolution of marriage presents single claim for relief); Cochran
v. Chapman, 21 So. 3d 1244 (Ala. Civ. App. 2008) (same); In re Marriage
of Leopando, 96 Ill. 2d 114, 449 N.E.2d 137, 70 Ill. Dec. 263 (1983)
(petition for dissolution of marriage presents multiple issues but single
claim for relief). Accord Neb. Rev. Stat. § 42-351 (Reissue 2016) (listing
various issues in divorce proceedings over which court has jurisdiction).
- 582 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568And finally, we analyze whether the district court plainly
erred in concluding that a natural parent has the absolute right
to unilaterally terminate an established in loco parentis rela-
tionship between a stepparent and his or her child.
(a) In Loco Parentis Doctrine
(i) Common-Law Principles
[12,13] The common-law doctrine of in loco parentis has
long been recognized in Nebraska, 27 and our cases gener-
ally define the contours of the doctrine “in keeping with”
English common law. 28 In that regard, Nebraska defines a
person standing in loco parentis as “one who 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.” 29
Whether one has assumed the relationship of in loco paren-
tis is a question of intention, which may be shown by the
acts and declarations of the person alleged to stand in that
relationship. 30
[14] As the common-law definition of in loco parentis sug-
gests, the primary consideration in the analysis is whether
27
See, e.g., Austin v. Austin, 147 Neb. 109, 22 N.W.2d 560 (1946)(superseded
by statute on other grounds as stated in In re Estate of McFayden, 235
Neb. 214, 454 N.W.2d 676 (1990); applying common-law doctrine of in
loco parentis to grandparents); McNish v. State, 74 Neb. 261, 104 N.W.
186 (1905) (finding foster parent with whom minor child lived stood
in loco parentis); Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903)
(recognizing aunt with whom minor child resided stood in loco parentis).
28
Austin, supra note 27, 147 Neb. at 113, 22 N.W.2d at 563 (citing “Powys
v. Mansfield, 14 Eng. Ch., 3 Mylne & Craig 359” for “‘proper definition’”
of in loco parentis). See, also, Neb. Rev. Stat. § 49-101 (Reissue 2021)
(adopting “common law of England” as Nebraska law to extent not
inconsistent with U.S. Constitution or any law passed by Legislature).
29
Carroll v. Gould, 308 Neb. 12, 26, 952 N.W.2d 1, 11 (2020). Accord
Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000); Austin, supra
note 27.
30
Carroll, supra note 29.
- 583 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568the person seeking in loco parentis status has assumed the
obligations incident to a parental relationship. 31 These obliga-
tions include providing support for the child and providing
day-to-day care for the child. 32 When considering the scope
of obligations incident to a parental relationship, we have also
found guidance in the Parenting Act’s 33 definition of “par-
enting functions.” 34 In that regard, the Legislature currently
defines “parenting functions” to mean “those aspects of the
relationship in which a parent or person in the parenting role
makes fundamental decisions and performs fundamental func-
tions necessary for the care and development of a child.” 35
[15,16] We have often described the doctrine of in loco
parentis as “a common-law doctrine that gives standing to a
nonparent to exercise the rights of a natural or adoptive par-
ent when the evidence shows the nonparent’s exercise of such
rights is in the child’s best interests.” 36 But our cases have also
recognized that “in loco parentis status is not equivalent to
31
See Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011),
disapproved on other grounds, Windham v. Griffin, 295 Neb. 279, 887
N.W.2d 710 (2016).
32
In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002),
disapproved on other grounds, In re Interest of Enyce J. & Eternity M.,
291 Neb. 965, 870 N.W.2d 413 (2015).
33
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp.
2022).
34
See Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000) (noting
Parenting Act’s definitions provide guidance regarding parental rights
and duties considered important by Legislature), disapproved on other
grounds, Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).
Accord Peister v. Eurek, 30 Neb. App. 366, 375, 969 N.W.2d 134, 140
(2021) (noting Parenting Act “offers guidance as to the obligations that the
Legislature has deemed important to the parental relationship”).
35
§ 43-2922(17) (emphasis supplied).
36
Windham v. Kroll, 307 Neb. 947, 955, 951 N.W.2d 744, 750 (2020).
Accord, State on behalf of Tina K. v. Adam B., 307 Neb. 1, 948 N.W.2d
182 (2020); Jennifer T., supra note 21; Whilde, supra note 21; In re
Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).
- 584 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568status as a parent and does not entitle a person to all the same
rights that a legal parent would enjoy.” 37
(ii) Temporary Nature of
In Loco Parentis
[17-19] Unlike biological and adoptive parenthood, the
status of in loco parentis is temporary, flexible, and capable
of being both suspended and reinstated. 38 Therefore, under
our precedent, in loco parentis is not a permanent status. 39
Under the common law, the in loco parentis relationship
may be abrogated at will either by the party standing in loco
parentis or by the child. 40 We acknowledged this common-
law rule in Hickenbottom, 41 and our cases addressing the in
loco parentis doctrine give effect to this rule by recognizing
that once a person stops assuming the obligations incident to
37
Whilde, supra note 21, 298 Neb. at 486, 904 N.W.2d at 704. Accord
Windham v. Kroll, supra note 36.
38
Windham v. Griffin, supra note 31.
39
Whilde, supra note 21. Accord Jennifer T., supra note 21 (holding litigant
cannot seek declaration of permanent in loco parentis status).
40
See, Harmon v. Dept. of Soc. & Health Serv., 134 Wash. 2d 523, 535,
951 P.2d 770, 775 (1998) (“[a]t common law the status of one standing
in loco parentis is voluntary and temporary and may be abrogated at will
by either the person standing in loco parentis or by the child”); In re
Marriage of Farrell, 67 Wash. App. 361, 835 P.2d 267 (1992) (recognizing
common-law rule that in loco parentis relationship may be abrogated by
either participant and holding 17-year-old child abrogated relationship by
moving out of stepfather’s home); Chestnut v. Chestnut, 247 S.C. 332,
334, 147 S.E.2d 269, 270 (1966) (in loco parentis status “is temporary,
and may be abrogated at will by either the person thus standing in loco
parentis or by the child”) (internal quotation marks omitted); State ex rel.
Gilman v. Bacon, 249 Iowa 1233, 91 N.W.2d 395 (1958) (same). See, also,
28 Am. Jur. Proof of Facts 2d 545 Loco Parentis Status § 8 at 559 (1981)
(recognizing that unlike natural parents, one who stands in loco parentis
“may terminate and abandon the burdens attendant on such status at any
time since the status . . . is temporary and susceptible of abrogation at will
by either the person thus standing or by the child”).
41
Hickenbottom, supra note 1.
- 585 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568the parental relationship, the person no longer stands in loco
parentis. 42 And “‘[t]ermination of the in loco parentis relation-
ship also terminates the corresponding rights and responsibili-
ties afforded thereby.’” 43
(b) Parental Preference Principles
[20,21] In Troxel v. Granville, 44 a plurality of the U.S.
Supreme Court held “it cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning
the care, custody, and control of their children.” In connec-
tion with this fundamental right, Troxel recognized a legal
“presumption that fit parents act in the best interests of their
children” 45 and explained that when a fit parent’s decision
regarding custody is “subject to judicial review, the court
must accord at least some special weight to the parent’s own
determination.” 46
[22,23] Even before Troxel, Nebraska recognized and applied
similar parental preference principles. 47 Sometimes calling it
the “parental preference doctrine,” we have described the prin-
ciples this way:
42
See Whilde, supra note 21. See, also, Hamilton, supra note 29; Quintela v.
Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996).
43
Whilde, supra note 21, 298 Neb. at 487, 904 N.W.2d at 704.
44
Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49(2000). Accord State on behalf of Tina K., supra note 36.
45
Troxel, supra note 44, 530 U.S. at 68.
46
Id., 530 U.S. at 70.
47
See, Stuhr v. Stuhr, 240 Neb. 239, 246, 481 N.W.2d 212, 217 (1992)
(Nebraska follows “parental preference principle[s]” under which courts
“may not, in derogation of the superior right of a biological or adoptive
parent, grant child custody to one who is not a biological or adoptive
parent” unless biological or adoptive parent is unfit or has lost parental
rights); Nielsen v. Nielsen, 207 Neb. 141, 149, 296 N.W.2d 483, 488
(1980) (fit natural parents have superior right to custody of minor child
and such right may not “lightly . . . be set aside in favor of more distant
relatives or unrelated parties”).
- 586 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568[B]ecause natural and adoptive parents have a funda-
mental right to make decisions concerning the care,
custody, and control of their minor children which is
constitutionally protected, custody disputes between a
natural or adoptive parent and a nonparent are governed
by the parental preference doctrine. That doctrine estab-
lishes a rebuttable presumption that the best interests of
a minor child are served by placing custody of the child
with his or her parent and, absent proof that a parent is
unfit or has forfeited the right to custody, a parent may
not ordinarily be deprived of the custody of a minor
child. In prior cases, we suggested it may be possible to
overcome the parental preference doctrine by showing
“the best interests of the child lie elsewhere,” but we
described such circumstances as “exceptional.” [More
recently,] we explained that in order for such excep-
tional circumstances to negate the parental preference
doctrine, there must be proof of serious physical or psy-
chological harm to the child or a substantial likelihood
of such harm. 48
[24] Nebraska has long applied parental preference prin-
ciples in custody disputes between a natural or adoptive par-
ent and one who stands in loco parentis. 49 In doing so, we
have recognized:
[I]n loco parentis status does not, by itself, eclipse the
superior nature of the parental preference accorded to
biological or adoptive parentage. Rather, in the face of a
natural parent’s objection, in loco parentis gives standing
to litigate whether the child’s best interests are served by
maintaining the in loco parentis relationship. 50
48
Windham v. Kroll, supra note 36, 307 Neb. at 958, 951 N.W.2d at 752.
49
See, e.g., Windham v. Kroll, supra note 36; State on behalf of Tina K.,
supra note 36; Windham v. Griffin, supra note 31; Stuhr, supra note 47;
State on behalf of Combs v. O’Neal, 11 Neb. App. 890, 662 N.W.2d 231(2003).
50
Jennifer T., supra note 21, 298 Neb. at 807, 906 N.W.2d at 57.
- 587 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568(c) Stepparents Who Stand
In Loco Parentis
Nebraska appellate courts have applied the doctrine of in
loco parentis to grandparents, 51 stepparents, 52 relatives, 53 third-
parties, 54 guardians, 55 and unmarried partners. 56 Because this
appeal involves application of the in loco parentis doctrine
in the context of a stepparent pursuing custody and visitation
with a stepchild in a dissolution proceeding, we focus on that
precedent specifically.
More than 30 years ago, in Hickenbottom, 57 we applied
the doctrine of in loco parentis to a stepparent who sought
court-ordered visitation with his stepdaughter when divorc-
ing the child’s biological mother. The district court found
the stepfather had established an in loco parentis relationship
with the stepchild during the marriage, and the court further
found it was in the child’s best interests to have visitation
with the stepfather. The court entered a decree granting the
stepfather reasonable visitation with the stepdaughter, and on
appeal, the mother argued the visitation award was an abuse
of discretion.
[25] The majority opinion in Hickenbottom observed the
general rule that “a husband who divorces the mother of [his
stepchild] is no longer the child’s stepfather,” and it framed
51
See, e.g., State on behalf of Daphnie F. v. Christina C., 310 Neb. 638, 967
N.W.2d 690 (2021); Carroll, supra note 29; Austin, supra note 27.
52
Hickenbottom, supra note 1. See, also, Stuhr, supra note 47; Cavanaugh,
supra note 20.
53
See, Windham v. Griffin, supra note 31; Martins v. School District, 101
Neb. 258, 162 N.W. 631 (1917); McNish, supra note 27.
54
See State on behalf of Tina K., supra note 36.
55
See, State, ex rel. Bize, v. Young, 121 Neb. 619, 237 N.W. 677 (1931);
Wirsig v. Scott, 79 Neb. 322, 112 N.W. 655 (1907).
56
See, e.g., Windham v. Kroll, supra note 36; Jennifer T., supra note 21;
Latham, supra note 31.
57
Hickenbottom, supra note 1.
- 588 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568the threshold issue on appeal as “whether the district court
had jurisdiction to grant the husband, as the ex-stepparent, the
right to visit his former stepdaughter.” 58 After reviewing the
reasoning of other courts that had allowed stepparent visita-
tion under a variety of theories, including in loco parentis, the
majority opinion noted that in proceedings under Nebraska’s
divorce statutes, the court has “‘jurisdiction to inquire into
such matters, make such investigations, and render such judg-
ments and make such orders, both temporary and final, as are
appropriate concerning the status of the marriage, [and] the
custody and support of minor children . . . .’” 59 Hickenbottom
described this statute as giving dissolution courts “‘complete
jurisdiction over the custody, support, and welfare of all minor
children who are touched upon by the divorce proceedings and
all related issues.’” 60
[26] Ultimately, Hickenbottom held that in a divorce pro-
ceeding, the court has jurisdiction to allow stepparent visita-
tion when the stepparent proves that an in loco parentis rela-
tionship was established with the stepchild during the marriage
and visitation is in the child’s best interests. Hickenbottom
articulated two reasons for requiring a threshold showing of
an in loco parentis relationship: (1) The existence and nature
of the relationship is relevant to determining what sort of
parenting arrangement would be in the child’s best interests, 61
and (2) requiring a stepparent to establish the existence of
58
Id. at 582-83, 477 N.W.2d at 11-12.
59
Id. at 598, 477 N.W.2d at 15 (quoting § 42-351 (Reissue 1988)).
60
Id. at 590, 477 N.W.2d at 15. Accord State ex rel Storz v. Storz, 235 Neb.
368, 455 N.W.2d 182 (1990) (holding district court where dissolution is
properly filed has full and complete general jurisdiction over entire marital
relationship and all related matters).
61
Hickenbottom, supra note 1, 239 Neb. at 592, 477 N.W.2d at 16-17(“[a]lthough the in loco parentis status is not specifically enumerated as a
requirement in [Neb. Rev. Stat.] § 42-364 [(Reissue 1988)], it is certainly
a relevant inquiry in considering the relationship of the children to each
parent”).
- 589 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568an in loco parentis relationship as a precondition to litigating
issues of visitation would ensure that “the door to visitation
rights is not open to one merely because he or she has the
legal title of stepparent.” 62
The Hickenbottom majority conducted a de novo review
and found the stepfather had established an in loco parentis
relationship with his former stepdaughter during the marriage.
It then considered the mother’s reasons for opposing the step-
father’s visitation postdivorce and found they had nothing to
do with the child’s best interests; instead, the mother’s oppo-
sition was motivated by a desire to “punish[] the husband by
denying him access to her daughter.” 63 The majority opinion
concluded that in those circumstances, there was no abuse of
discretion in awarding stepparent visitation over the objection
of the mother.
Two justices concurred in part and in part dissented in
Hickenbottom. These justices agreed with the majority that
a stepparent who established an in loco parentis relationship
with a stepchild while married to the child’s natural parent may
be granted visitation in a dissolution when it is in the child’s
best interests. But they thought the cause should be remanded
for further proceedings to determine whether (1) the stepchild
desired to continue the in loco parentis relationship, (2) the
stepfather should be required to pay child support for the
stepdaughter, and (3) the stepchild’s biological father should
be given notice and an opportunity to be joined as a party to
the dissolution. 64
One year after Hickenbottom, we decided Stuhr v. Stuhr 65
and explained how the parental preference doctrine applies in
a custody dispute between a natural parent and a stepparent
62
Hickenbottom, supra note 1, 239 Neb. at 592, 477 N.W.2d at 17.
63
Id. at 593, 477 N.W.2d at 17.
64
Hickenbottom, supra note 1 (Fahrnbruch, J., concurring in part, and in part
dissenting; White, J., joins).
65
Stuhr, supra note 47.
- 590 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568who established an in loco parentis relationship with a step-
child during the marriage. In Stuhr, a stipulated divorce decree
gave the stepfather custody of his stepson subject to the natural
mother’s reasonable visitation. Two years later, the mother
moved to modify custody, alleging there had been a material
change in circumstances because she had completed drug and
alcohol treatment, had remarried, and could provide a safe and
stable home for the minor child. After an evidentiary hearing,
the court found both parties were fit and suitable parents. But
reasoning that the stepfather had provided the only stable home
the child had ever known, the court concluded that despite a
material change in the mother’s circumstances, it was not in
the child’s best interests to change his primary custody.
The mother appealed, arguing the court failed to properly
consider her superior right to custody under the parental pref-
erence doctrine. We agreed. Our opinion in Stuhr acknowl-
edged the constitutionally protected nature of the parent-child
relationship and explained that under the parental prefer-
ence doctrine
a court may not, in derogation of the superior right of a
biological or adoptive parent, grant child custody to one
who is not a biological or adoptive parent unless the bio-
logical or adoptive parent is unfit to have child custody
or has legally lost the parental superior right in a child. 66
After reviewing the record de novo, we agreed with the dis-
trict court that both the mother and stepfather were fit and
proper persons to have custody, but we held the district court
had abused its discretion by failing to adequately consider the
fit natural mother’s superior right to custody under parental
preference principles. Because the evidence showed the mother
was fit and had not forfeited her parental rights, we reversed
the district court’s judgment and modified the decree to give
the mother primary custody of her son, subject to the stepfa-
ther’s reasonable rights of visitation.
66
Id., 240 Neb. at 246, 481 N.W.2d at 217.
- 591 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568(d) District Court Plainly Erred
in Applying Precedent
[27] After Hickenbottom and Stuhr, Nebraska appellate
courts generally recognize that it is a stepparent’s “desire to
remain in an in loco parentis relationship with his [or her
spouse’s] child that gives rise to the rights and correspond-
ing responsibilities usually reserved for natural or adoptive
parents.” 67 Here, it is undisputed that Noland desired to remain
in an in loco parentis relationship with A.B. after the divorce,
and his complaint for dissolution expressly sought custody
and parenting time with A.B. based on that relationship. After
the evidentiary hearing, the district court expressly found that
Noland had established an in loco parentis relationship with
A.B. during the marriage. Under Hickenbottom, this threshold
showing entitled Noland to litigate issues of custody and par-
enting time in the divorce, although the showing alone does
not guarantee success on the merits of those issues.
But the court did not proceed to consider whether A.B.
wanted to continue the in loco parentis relationship or whether
doing so was in A.B.’s best interests. Nor did the court post-
pone consideration of those issues until all other issues were
tried and submitted. Instead, the court concluded that Noland
had no right to litigate issues of custody or visitation in the
divorce, because his in loco parentis status had been effec-
tively terminated by Yost’s unilateral decision to cut off all
contact between A.B. and Noland when the divorce proceed-
ings were commenced. More specifically, the district court
concluded as a matter of law that Nebraska’s parental prefer-
ence doctrine allows natural parents to unilaterally terminate
an established in loco parentis relationship involving their
minor child and that courts are “without power to infringe”
67
In re Interest of Sarah H., 21 Neb. App. 441, 452, 838 N.W.2d 389, 398
(2013). Accord, 67A C.J.S. Parent and Child § 361 at 484-85 (2023)
(“[t]he status of loco parentis for a stepparent generally terminates upon
divorce, . . . unless the party standing in loco parentis to the child means
that it should continue”).
- 592 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568on that decision. This amounted to plain error for at least
two reasons.
[28] First, under Nebraska law, parental preference prin-
ciples do not insulate parental decisions from judicial review.
In Hamit v. Hamit, 68 we discussed the rebuttable nature of
the presumption that fit parents act in their child’s best inter-
ests. We cited with approval the proposition that even though
Troxel requires courts to accord at least some special weight
to a fit parent’s decision, “‘the “special weight” requirement
does not insulate parental wishes from judicial review.’” 69
Not only did the district court here have the authority to
review Yost’s decision to stop all contact between A.B. and
Noland, but Hickenbottom teaches that the reasons for Yost’s
decision should be considered when evaluating whether it
is in the child’s best interests to continue the in loco paren-
tis relationship. 70
Second, nothing in our jurisprudence suggests that fit natu-
ral parents have an absolute right to unilaterally terminate, at
will, an established in loco parentis relationship between their
minor child and a stepparent. Nebraska has long adhered to
the common-law doctrine of in loco parentis, including the
rule that an in loco parentis relationship can be terminated at
will by either the party standing in loco parentis or the child. 71
68
Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).
69
Id. at 671, 715 N.W.2d at 523 (quoting In re R.A., Jr., 121 P.3d 295 (Colo.
App. 2005)).
70
See Hickenbottom, supra note 1 (considering reasons for natural mother’s
objection to stepparent visitation when determining whether continuing in
loco parentis relationship with stepfather postdivorce was in child’s best
interests). Accord, Whilde, supra note 21, 298 Neb. at 487, 904 N.W.2d
at 705 (noting Texas order established in loco parentis-like relationship
between mother’s natural child and mother’s former partner and issue of
whether such relationship “still existed was relevant . . . to the court’s
consideration of whether or not it was in the child’s best interests for
[former partner] to continue to have rights of custody and visitation”).
71
See cases cited supra note 44.
- 593 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568As we recently recognized, our cases “have never held that
in loco parentis status can be involuntarily extinguished from
one day to the next, let alone from one hour to the next.” 72
Instead, our cases illustrate that when an in loco parentis rela-
tionship has been established, one who stands in loco parentis
should be allowed to litigate whether it is in the child’s best
interests to continue that relationship, even over the natural
parent’s objection. 73
[29,30] In that regard, we have quoted with approval the
proposition that “‘a biological parent’s rights do not extend to
erasing [an in loco parentis] relationship between her partner
and her child which she voluntarily created and actively fos-
tered simply because after the parties’ separation she regretted
having done so.’” 74 And we have explained:
“[W]hile it is presumed that a child’s best interest is
served by maintaining the family’s privacy and autonomy,
that presumption must give way where the child has
established strong psychological bonds with a person
who, although not a biological parent, has lived with the
child and provided care, nurture, and affection, assuming
in the child’s eye a stature like that of a parent. Where
such a relationship is shown, . . . the child’s best interest
requires that the third party be granted standing so as to
have the opportunity to litigate fully the issue of whether
that relationship should be maintained even over a natural
parent’s objection.” 75
[31] Parental preference principles must be carefully con-
sidered by courts when determining custody disputes between
72
Carroll, supra note 29, 308 Neb. at 25, 952 N.W.2d at 10.
73
See, e.g., id.; Windham v. Griffin, supra note 31; Latham, supra note 31;
Hickenbottom, supra note 1.
74
Latham, supra note 31, 282 Neb. at 134, 802 N.W.2d at 76 (quoting T.B.
v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001)).
75
Id. at 130, 802 N.W.2d at 74 (quoting J.A.L. v. E.P.H., 453 Pa. Super. 78,
682 A.2d 1314 (1996)).
- 594 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568a natural or adoptive parent and one who stands in loco
parentis, 76 but these principles do not give natural parents
an absolute right to terminate, at will, an established in loco
parentis relationship involving their minor child. 77 The district
court’s conclusion that Yost had an absolute right to unilaterally
terminate the established in loco parentis relationship between
A.B. and Noland is thus contrary to Nebraska’s settled prec-
edent. Because this misapplication of law resulted in Noland
being barred from litigating custody and visitation issues, it
amounted to plain error, and leaving it uncorrected would dam-
age the integrity and fairness of the judicial process. 78
For the sake of completeness, we acknowledge that a few
courts in other states have issued opinions allowing natural
parents to unilaterally terminate established in loco parentis
relationships at will. 79 The district court here did not expressly
cite to such cases, but to the extent it may have relied upon
76
See, e.g., Windham v. Kroll, supra note 36; State on behalf of Tina K.,
supra note 36; Windham v. Griffin, supra note 31; Stuhr, supra note 47;
State on behalf of Combs, supra note 49.
77
Accord Latham, supra note 31.
78
See, Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011) (court
committed plain error by failing to give proper legal effect to paternity
acknowledgment); Deterding v. Deterding, 18 Neb. App. 922, 797 N.W.2d
33 (2011) (dissolution court committed plain error by failing to determine
whether husband should be ordered to pay child support for wife’s natural
child conceived through artificial insemination during marriage, under
theory of in loco parentis).
79
See, e.g., Foust v. Montez-Torres, 2015 Ark. 66, at 5, 456 S.W.2d 736,
739 (2015) (reasoning that natural parents must be permitted to terminate
in loco parentis relationship at will “lest the law improperly prioritize
the rights of the nonparent above that of the natural parent”); Jones v.
Barlow, 154 P.3d 808, 814 (Utah 2007) (reasoning that if natural parents
are not allowed to terminate in loco parentis relationships at will, those
standing in loco parentis can “extend [their] parent-like rights against the
legal parent’s objections for as long as [they see] fit”). But see McCrillis
v. Hicks, 2017 Ark. App. 221, 518 S.W.3d 734 (2017) (limiting rule
announced in Foust and holding there are still circumstances under which
natural parents cannot unilaterally terminate in loco parentis relationship).
- 595 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
NOLAND V. YOST
Cite as 315 Neb. 568similar reasoning, it is inconsistent with Nebraska’s in loco
parentis jurisprudence.
V. CONCLUSION
The district court plainly erred in concluding that the paren-
tal preference doctrine gave Yost an unfettered right to unilat-
erally terminate the in loco parentis relationship between A.B.
and Noland. We therefore reverse that portion of the March
2022 order and remand the cause for further proceedings con-
sistent with this opinion.
Reversed and remanded for
further proceedings.