Summary
The Nebraska Supreme Court considered whether a fit biological mother’s parental preference could be overcome in favor of a nonparent standing in loco parentis. The court held that, absent forfeiture, an exceptional case requires proof of serious physical or psychological harm to the child or a substantial likelihood of such harm. Because the district court applied an incomplete standard, the custody order was reversed and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the district court could award custody to a nonparent standing in loco parentis over a fit biological parent who had not forfeited her superior custody right based solely on the child's best interests.
- What standard governs the exceptional circumstances necessary to negate the parental preference principle.
Holdings
- A fit parent who has not forfeited the superior right to custody retains parental preference over a nonparent standing in loco parentis. The child's best interests alone do not overcome that preference except in an exceptional case.
- Exceptional circumstances negate the parental preference principle only upon proof of serious physical or psychological harm to the child or a substantial likelihood of such harm.
- The evidence did not establish that Tina forfeited her parental preference through substantial, continuous, and repeated neglect.
Key quotations
“We now refine our articulation in Windham to clarify that in order for exceptional circumstances to negate the parental preference principle, there must be proof of serious physical or psychological harm to the child or a substantial likelihood of such harm.” (at 13-14)
“When a fit parent has not forfeited his or her superior right to custody, the best interests of a child will negate the parental preference principle only in an exceptional case.” (at 14)
Factual background
Destiny B. was born in July 2003 to Tina K. and Adam B. After periods of custody with both parents, Destiny lived with Jo K., a longtime family friend, beginning in approximately 2014. Jo provided the primary caregiving, educational, medical, and therapeutic support for several years, while Tina maintained visitation and later established employment and housing. The district court found Tina fit but determined that Destiny's best interests favored remaining with Jo.
Procedural history
The State initially sought to establish paternity and support. After prior custody modifications and temporary placements, Tina filed a 2017 complaint to modify custody, and Jo intervened seeking relief concerning Destiny's welfare. Following a 2018 trial, the district court found Tina fit but concluded that the child's best interests negated parental preference and awarded custody to Jo. The Nebraska Supreme Court reversed and remanded because the district court applied an incomplete standard for overcoming a fit parent's superior custody right.
Remand instructions
The district court must reconsider custody under the clarified exceptional-circumstances standard, determining whether there is proof of serious physical or psychological harm to Destiny or a substantial likelihood of such harm. The district court may decide whether to expand the existing record.