Peister v. Eurek ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2021 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
PEISTER v. EUREK
Cite as 30 Neb. App. 366Brian Peister, appellant, v.
Channing Eurek, appellee.
___ N.W.2d ___
Filed November 9, 2021. No. A-21-135.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
issue does not involve a factual dispute, determination of a jurisdictional
issue is a matter of law which requires an appellate court to reach a
conclusion independent from the trial court’s; however, when a deter-
mination rests on factual findings, a trial court’s decision on the issue
will be upheld unless the factual findings concerning jurisdiction are
clearly incorrect.
2. Standing: Parent and Child: Child Custody: Visitation. A party that
stands in loco parentis to a minor child has standing to seek custody and
visitation regarding that child.
3. Actions: Standing. Whether a party who commences an action has
standing presents a jurisdictional issue.
4. Standing: Pleadings: Evidence: Appeal and Error. When a challenge
to a party’s standing is raised after the pleadings stage and the trial court
holds an evidentiary hearing and reviews evidence outside the pleadings,
an appellate court reviews the trial court’s factual findings under the
clearly erroneous standard. However, the trial court’s ruling regarding
whether the party has standing is reviewed de novo, because it presents
a question of law.
5. 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 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.
6. 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.
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PEISTER v. EUREK
Cite as 30 Neb. App. 3667. Parent and Child. The parental relationship should be found to exist
only if the facts and circumstances show that the individual means to
take the place of the lawful parent not only in providing support but also
with reference to the natural parent’s office of educating and instructing
and caring for the general welfare of the child.
8. ____. Because in loco parentis status is transitory and not permanent, it
may be lost.
Appeal from the District Court for Adams County: Terri S.
Harder, Judge. Affirmed.
Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for
appellant.
Jonathan Hendricks, of Dowding, Dowding, Dowding &
Urbom, for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Channing Eurek gave birth to a daughter, Melanie J., in
December 2012. Eurek subsequently met and became involved
with Brian Peister in late 2013. They lived together for a
period of time until August 2016, when their relationship
ended. Peister continued to spend time with Melanie until
Eurek ended his contact with Melanie in early 2020. Peister
filed a complaint alleging to stand in loco parentis to Melanie
and requesting parenting time. Following an evidentiary hear-
ing, the Adams County District Court entered an order in
which it found that Peister did not stand in loco parentis to
Melanie and dismissed his complaint. Peister appeals from that
order. We affirm.
BACKGROUND
Factual History
Shortly after Melanie’s birth in Wayne, Nebraska, in
December 2012, Eurek moved with Melanie first to Loup
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PEISTER v. EUREK
Cite as 30 Neb. App. 366City, Nebraska, and then in October 2013, the two moved to
Kearney, Nebraska. After the move to Kearney, Eurek met
Peister, and the two began a relationship in late 2013. In
August 2014, the parties moved in together at a location in
Kearney along with Melanie and an additional roommate. At
the end of their lease in August 2015, the parties moved to
a second location in Kearney and continued to live together
until August 2016. During this 2-year period of cohabitation,
Peister fostered a relationship with Melanie, assisting in her
care and supervision outside of daycare hours when neither
Eurek nor her parents were able to look after Melanie during
evening hours and on weekends. After the move, the parties’
relationship began to deteriorate and eventually ended dur-
ing the first half of 2016. When the parties’ lease expired in
August 2016, the parties physically separated, and Melanie
lived with Eurek.
Following a period of minimal contact, Eurek and Peister
eventually reconnected in late 2016 and agreed to remain
friends. Despite the end of their romantic relationship, Peister
offered to continue to look after Melanie when needed. Eurek
accepted Peister’s offer, and Peister continued to watch over
and spend time with Melanie when Eurek was working and
could not have her parents take care of Melanie after daycare
and on weekends. Additionally, Peister began sending checks
to Eurek in late 2016 to help pay for Melanie’s daycare and
other expenses.
Eurek moved to Hastings, Nebraska, in January 2018, and
Peister also moved to Hastings a few months thereafter. Shortly
after moving, Eurek hired a nanny to assist in caring for
Melanie during Eurek’s 24-hour work shifts, and Peister’s time
with Melanie decreased as Eurek relied more on the nanny
to care for Melanie. In the first half of 2018, Peister stopped
sending checks to Eurek for Melanie’s daycare. Peister’s time
with Melanie increased in January 2019, when the hired nanny
moved away. Eurek hired a second nanny in February 2019,
and Peister’s time with Melanie was reduced to watching
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PEISTER v. EUREK
Cite as 30 Neb. App. 366her approximately once per week. This arrangement continued
until early 2020, when Eurek stopped asking Peister to look
after Melanie.
June 2020 Complaint
for Parenting Time
On June 8, 2020, Peister filed a “Complaint to Establish
Custody and Visitation in Loco Parentis” in the district court.
Peister’s complaint initially named the individual believed to
be Melanie’s biological father as a defendant, but Peister dis-
missed this claim after he received notice that this individual
was determined not to be Melanie’s biological father as part
of a separate action. Peister claimed that he had established
a parent-child relationship with Melanie such that he stood in
loco parentis and asked the district court to award him parent-
ing time with Melanie. In her answer, Eurek argued that Peister
did not stand in loco parentis to Melanie and that parenting
time with Peister was not in Melanie’s best interests.
The district court held a hearing on January 14, 2021. The
parties offered exhibits and witness testimony, and Melanie
also testified outside the presence of the parties. Additionally,
Peister submitted a proposed parenting plan to the court. We
now summarize the parties’ respective testimonies given at
the hearing.
Peister testified that while his relationship with Melanie was
initially “just as a friendly figure,” he over time “kind of just
took the role for” being a father figure to her. He gave exam-
ples of how he spent time together with Melanie during the 2
years that he lived with her and Eurek, describing that he and
Melanie would “watch TV together, play games together, [and]
ride the trike together.” He explained that he would watch
over Melanie when Eurek was at work, pick Melanie up from
daycare or other places, visit his parents with Melanie, and
occasionally go on family vacations with Eurek and Melanie
during this period. Regarding financial support, Peister recalled
that he and Eurek pooled their money together to cover the
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PEISTER v. EUREK
Cite as 30 Neb. App. 366cost of necessities for Melanie and had also established a joint
bank account concurrent with their consolidation of certain
debts. The parties each retained their own separate accounts in
addition to this joint account.
After the end of the parties’ relationship and their physical
separation in August 2016, Peister described that his relation-
ship with Melanie “didn’t change much at all” and “[t]he only
thing that really changed . . . was that there [were] two house-
holds.” He stated that he and Eurek coordinated their schedules
such that he was taking care of Melanie “at least 40 percent of
the time” in the same fashion he had while he lived together
with Eurek. Peister testified that he kept a room at his home for
Melanie and provided food, clothing, toys, and other items for
when she stayed with him. Eurek typically brought Melanie to
Peister’s home in the evening after Melanie had already eaten
and bathed, and Peister confirmed that he would spend around
“a half hour to an hour with [Melanie] before bedtime” and
some amount of time with her in the morning if she was going
to daycare that day. Peister acknowledged that he would occa-
sionally have his roommate or another friend pick up Melanie
from daycare and help watch over her if Peister was working.
Peister sent several checks to Eurek to help pay for Melanie’s
daycare from late 2016 until 2018. He affirmed on cross-­
examination that he stopped sending these payments in 2018
due to his dissatisfaction with the time he was allowed with
Melanie. He said that Eurek did not involve him in Melanie’s
education and health care and that she did not notify him of
any related expenses. He nonetheless attended Melanie’s dance
recitals and soccer games and practices.
Peister also drew attention to comments made by Eurek and
Melanie indicating that he was a father figure to Melanie and
to his own impressions of his role. Eurek had made several
statements to Peister such as “I care about you as [Melanie’s]
dad.” Peister recalled that Melanie would refer to him as “dad”
on multiple occasions. He explained that the reason behind
his decision to financially support Melanie—even after he and
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Nebraska Court of Appeals Advance Sheets
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PEISTER v. EUREK
Cite as 30 Neb. App. 366Eurek separated—was because he felt he “had a father rela-
tionship” with Melanie and that the same feeling led him to
offer to provide for half of Melanie’s expenses before he filed
this action.
Conversely, Eurek described Peister’s involvement with
Melanie as “nothing outside of what [she] would consider
a friend would do.” Eurek testified that Peister had little or
no involvement in parenting functions such as “changing
diapers,” “potty training,” “[b]athing,” “[p]utting Melanie to
bed,” “[g]etting up at night with Melanie,” and “[g]oing to
[Melanie’s] doctor appointments.” Eurek “would always stay
home with [Melanie] if she was ill” and “would come home
and take care of ” Melanie if she became sick during her over-
night work shifts. Eurek had Melanie attend daycare on week-
days when she worked, and when she had to work weekend
shifts, Melanie spent “probably 95 percent” of those week-
ends with Eurek’s parents in Loup City. Peister would watch
Melanie overnight during Eurek’s weekday shifts if she “did
not have any other child care when [she] was working during
the week.” Eurek testified that Melanie “would always be fed
and bathed and put to bed before [she] had left for work” on
those nights, including “tuck[ing] her in” before Eurek left.
She agreed that Peister “would be responsible if [Melanie]
woke up during the night.”
Eurek stated that after the end of the parties’ romantic rela-
tionship, Peister “knew he was also [her] last option if [her]
parents could not take care of Melanie.” Eurek recalled that
beginning in the summer of 2017, Melanie would spend the
majority of summers with Eurek’s parents in Loup City, and
she denied that Peister would have contact with Melanie or
request time with her during the summertime. After she and
Melanie moved to Hastings, Eurek hired a nanny to take care
of Melanie when she was working, and Peister would take care
of Melanie “[m]aybe one day a week.” Eurek affirmed that
Melanie would typically have eaten and been bathed before
dropping her off with Peister during this period.
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Nebraska Court of Appeals Advance Sheets
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PEISTER v. EUREK
Cite as 30 Neb. App. 366Although Peister’s time with Melanie increased after the
first nanny hired by Eurek moved in January 2019, Eurek tes-
tified that she became aware of issues such as Melanie “not
getting to school on time or not being picked up after school
or day-care” that coincided with Peister’s time with Melanie.
Eurek thereafter hired a second nanny in February 2019 to
ensure that Melanie would be “getting the stuff that she
needs.” Eurek testified that Peister was not involved in deci-
sions regarding Melanie’s education and health care, noting
that he had not been involved with parent-teacher conferences,
Melanie’s enrollment in a “Head Start” program, meetings
regarding Melanie’s individualized education program, and
Melanie’s doctor and dentist appointments. Eurek also stated
that although Peister had helped her pay for Melanie’s daycare
from 2016 until 2018, he did not help her pay for the nannies
she hired or Melanie’s medical bills, school expenses, and
basic necessities. After hiring the second nanny, Eurek char-
acterized Peister as the “last ditch effort” if she “didn’t have
anybody else to watch” Melanie, which ended in March 2020
when Eurek chose to end Peister’s contact with Melanie.
Eurek further explained that at the time of the hearing, she
and Melanie had been living together with her current boy-
friend, who is the biological father of Eurek’s second child.
Eurek indicated that Melanie had warmed up to Eurek’s boy-
friend quickly and “has come around to start calling him dad.”
She testified that they were presently planning to be married
“in the next year” and for him to formally adopt Melanie if
they were to get married.
Following the hearing, the district court entered an order on
February 4, 2021, dismissing Peister’s complaint. After sum-
marizing the testimony given, the court found that Peister did
not stand in loco parentis to Melanie. The court stated that
Peister made “no claim that he has participated in the signifi-
cant decisions for Melanie” regarding her “healthcare needs,
education, religion, or other matters concerning [her] welfare”
and observed that it was Eurek who “made arrangements
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PEISTER v. EUREK
Cite as 30 Neb. App. 366for [Melanie’s] care” and attended to Melanie’s education
and health care. The court concluded that while Peister had
“watched her, picked her up, played with her, went on some
trips with her and paid some of her expenses,” Peister had
not assumed all obligations incident to the parental relation-
ship with Melanie. The court also found Peister’s financial
support for Melanie was “minimal” and noted that although
Peister originally paid part of Melanie’s daycare expenses, he
had “paid nothing towards her daycare since the first part of
2018.” The court alternatively concluded that if Peister had
previously “stood in loco parentis [to Melanie] at some time,
he lost that standing.”
Peister now appeals.
ASSIGNMENT OF ERROR
Peister claims the district court erred in finding that he did
not stand in loco parentis to Melanie.
STANDARD OF REVIEW
[1] When a jurisdictional issue does not involve a factual
dispute, determination of a jurisdictional issue is a matter of
law which requires an appellate court to reach a conclusion
independent from the trial court’s; however, when a determi-
nation rests on factual findings, a trial court’s decision on the
issue will be upheld unless the factual findings concerning
jurisdiction are clearly incorrect. Hawley v. Skradski, 304 Neb.
488, 935 N.W.2d 212 (2019).
ANALYSIS
Standing and Doctrine
of In Loco Parentis
[2-4] The issue before this court is whether Peister stands in
loco parentis to Melanie. A party that stands in loco parentis
to a minor child has standing to seek custody and visitation
regarding that child. 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).
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Nebraska Court of Appeals Advance Sheets
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PEISTER v. EUREK
Cite as 30 Neb. App. 366See, also, In re Guardianship of Brydon P., 286 Neb. 661, 838
N.W.2d 262 (2013) (in context of court action in which non-
parent seeks custody or visitation with child, in loco parentis
is doctrine of standing). Whether a party who commences an
action has standing presents a jurisdictional issue. See Hawley
v. Skradski, supra. When a challenge to a party’s standing is
raised after the pleadings stage and the trial court holds an evi-
dentiary hearing and reviews evidence outside the pleadings,
an appellate court reviews the trial court’s factual findings
under the clearly erroneous standard. See id. However, the
trial court’s ruling regarding whether the party has standing
is reviewed de novo, because it presents a question of law.
See id.Here, the parties presented evidence regarding Peister’s rela-
tionship and involvement with Melanie to the district court at
the hearing held on January 14, 2021. Although the issue of
Peister’s standing was raised in Eurek’s answer to his com-
plaint, the evidence considered by the court at this hearing was
outside of the parties’ pleadings. As such, we review the court’s
factual findings for clear error, and we review de novo the
court’s determination that Peister did not have standing under
the doctrine of in loco parentis.
Peister Does Not Stand
In Loco Parentis
[5-7] The Nebraska Supreme Court has described the
­common­-law doctrine of in loco parentis as a means “to afford
rights to nonparents where the exercise of those rights is in the
best interests of the child.” Latham v. Schwerdtfeger, 282 Neb.
at 128, 802 N.W.2d at 72. A person standing in loco parentis
to a child is one who has put himself or herself in the situa-
tion of a lawful parent by assuming the obligations incident to
the parental relationship, without going through the formali-
ties necessary to a legal adoption, and the rights, duties, and
liabilities of such person are the same as those of the lawful
parent. Carroll v. Gould, 308 Neb. 12, 952 N.W.2d 1 (2020).
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PEISTER v. EUREK
Cite as 30 Neb. App. 366The assumption of the relationship of in loco parentis is a ques-
tion of intention, which may be shown by the acts and decla-
rations of the person alleged to stand in that relationship. Id.The parental relationship should be found to exist only if the
facts and circumstances show that the individual means to take
the place of a lawful parent not only in providing support but
also with reference to the natural parent’s office of educating
and instructing and caring for the general welfare of the child.
State on behalf of Lilliana L. v. Hugo C., 26 Neb. App. 923,
924 N.W.2d 743 (2019).
The Parenting Act, Neb. Rev. Stat. § 43-2920 et seq. (Reissue
2016 & Cum. Supp. 2020), offers guidance as to the obliga-
tions that the Legislature has deemed important to the parental
relationship. For purposes of the Parenting Act, § 43-2922(17)
provides:
Parenting functions means those aspects of the relation-
ship in which a parent or person in the parenting role
makes fundamental decisions and performs fundamental
functions necessary for the care and development of a
child. Parenting functions include, but are not limited to:
(a) Maintaining a safe, stable, consistent, and nurturing
relationship with the child;
(b) Attending to the ongoing developmental needs of
the child, including feeding, clothing, physical care and
grooming, health and medical needs, emotional stability,
supervision, and appropriate conflict resolution skills and
engaging in other activities appropriate to the healthy
development of the child within the social and economic
circumstances of the family;
(c) Attending to the adequate education for the child,
including remedial or other special education essential to
the best interests of the child;
....
(f) Assisting the child in developing skills to main-
tain safe, positive, and appropriate interpersonal relation-
ships; and
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PEISTER v. EUREK
Cite as 30 Neb. App. 366(g) Exercising appropriate support for social, aca-
demic, athletic, or other special interests and abilities of
the child within the social and economic circumstances of
the family.
Despite Peister’s claims to have “accepted the responsibili-
ties of a parent—both financial and otherwise,” brief for appel-
lant at 13, Peister had a minimal role in fulfilling these parent-
ing functions for Melanie both during the parties’ relationship
and after their separation. The record indicates that Eurek’s
work schedule and available sources of care dictated Peister’s
time with Melanie, and his role primarily entailed playing with
her and looking after her for brief periods of time. However,
per the parties’ testimonies, Peister’s involvement as a parental
figure in Melanie’s education, health, and general care was
minimal, and although Peister claimed that Eurek chose not
to involve him in these matters, Peister’s efforts to become
involved were limited. We also note that Peister did not help
cover costs associated with Melanie’s education and health
care, and the limited financial support that he did provide
effectively evaporated in 2018 when he voluntarily stopped
sending checks to help pay for Melanie’s daycare. Only after
Eurek cut off his contact with Melanie in early 2020 did Peister
offer to pay half of Melanie’s expenses.
[8] The record supports the district court’s factual findings
and its determination that Peister did not establish that he
assumed all obligations incident to the parent-child relation-
ship. We likewise conclude that Peister does not stand in loco
parentis to Melanie and lacks standing to seek court-ordered
parenting time. We also agree with the district court’s deter-
mination that even if “Peister stood in loco parentis at some
time, he lost that standing.” The court stated it did “not believe
Peister ever stood in loco parentis to [Melanie] and [had] cer-
tainly . . . not done so since early in 2018.” Because in loco
parentis status is transitory and not permanent, it may be lost.
Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017).
Once the person alleged to be in loco parentis no longer
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PEISTER v. EUREK
Cite as 30 Neb. App. 366discharges all duties incident to the parental relationship, the
person is no longer in loco parentis. Id.CONCLUSION
For the reasons set forth above, the order of the district court
dismissing Peister’s complaint is affirmed.
Affirmed.