Carroll v. Gould
952 N.W.2d 1
Neb.2020Background
- Child S.G., born 2016, was subject of a custody action filed by mother Arleene Carroll on November 25, 2019; a prior March 2019 order in a companion case established paternity and child support for father Gabriel W. Gould.
- Arleene obtained an ex parte temporary custody order on November 26, 2019; that order was continued temporarily and later modified on January 31, 2020 to give temporary physical custody to Gabriel.
- Paternal grandfather James Gould filed a complaint to intervene (and a motion for temporary custody) on January 31, 2020, alleging he stood in loco parentis: S.G. had lived in his home since birth and he had assumed parental obligations.
- At the February 7 hearing the court received James’ affidavit but declined to treat the matter as a full evidentiary hearing; Gabriel filed objections and a later affidavit.
- On February 27, 2020 the district court denied James’ intervention, concluding any in loco parentis status was extinguished by prior child support and the January 31 temporary custody order; James appealed.
Issues
| Issue | James' Argument | Gabriel's Argument | Held |
|---|---|---|---|
| Whether James may intervene as a matter of right claiming in loco parentis | James: he assumed all parental obligations, S.G. lived with him since birth, so he has a direct legal interest and should be allowed to intervene | Gabriel: prior child support order and the January 31 temporary custody order show James no longer had care/status and intervention is improper | Held: James sufficiently alleged a direct, legal interest; intervention as of right must be allowed on the pleadings |
| Proper standard for ruling on intervention (pleadings vs. factual finding) | James: intervention must be decided on the pleadings assuming allegations true; factual disputes reserved for later hearing | Gabriel/court: relied on existing orders/filings to find facts (and treated filings as showing James was not involved) | Held: Court erred by resolving disputed facts and treating public filings as proof of their contents; the court must assume intervenor’s pleaded facts are true at the preliminary stage |
| Effect of near-contemporaneous temporary custody order on in loco parentis status | James: standing is measured at time complaint to intervene is filed; in loco parentis is not instantaneously extinguished | Gabriel: the January 31 temporary custody order and other filings demonstrate extinguishment | Held: The January 31 order was effectively simultaneous with James’ filing and did not automatically extinguish alleged in loco parentis status for intervention purposes |
Key Cases Cited
- Jeffrey B. v. Amy L., 283 Neb. 940 (2012) (intervention is a question of law and court must assume intervenor’s pleaded facts are true when deciding leave to intervene)
- Streck, Inc. v. Ryan Family, 297 Neb. 773 (2017) (reiterating that intervention is determined on the pleadings and allegations are assumed true at that stage)
- Kirchner v. Gast, 169 Neb. 404 (1959) (court may exclude an intervenor whose pleadings fail to disclose a direct interest; preliminary sufficiency is decided before merits)
- In re Interest of Enyce J. & Eternity M., 291 Neb. 965 (2015) (an intervenor must have a direct and legal interest that will be affected by the judgment)
- Hamilton v. Foster, 260 Neb. 887 (2000) (defines in loco parentis and explains it requires assuming all parental obligations; intent may be shown by acts/declarations)
- County of Nance v. Thomas, 146 Neb. 640 (1945) (if intervenor’s allegations prove false, costs of the intervention may be taxed against the intervenor)