Kane v. Kane, 311 Neb. 657

Suzette Kane (grandmother) filed a petition under Nebraska’s grandparent visitation statute seeking visitation with her minor grandchildren after the parents’ divorce.
The children are the offspring of Shauna Kane (daughter of Suzette) and Michael Leonard (father); Shauna and Michael oppose visitation.
Shauna and Michael moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(1) (lack of subject matter jurisdiction) and (b)(6) (failure to state a claim), submitting affidavits describing estrangement and limited prior contact with Suzette.
The district court granted dismissal for lack of subject matter jurisdiction, concluding the statute would unconstitutionally infringe the parents’ fundamental liberty interest in childrearing.
Suzette appealed; the Nebraska Supreme Court reviewed whether the district court erred in dismissing for lack of jurisdiction and whether the statute’s constitutionality should be decided on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Does the district court have subject matter jurisdiction to hear a grandparent visitation petition filed after parental dissolution?	Statutes §43‑1802/§43‑1803 vest jurisdiction in the district court where the dissolution was entered; petition properly filed.	Exercising jurisdiction would infringe parents’ fundamental liberty interest and thus the court lacks jurisdiction.	Court: District court erred — subject matter jurisdiction exists under the statutes; dismissal on jurisdictional grounds was improper.
2. Is the grandparent visitation statute unconstitutional as applied so as to deprive the court of jurisdiction?	The statute is constitutional when correctly applied; any constitutional issue should be considered after evaluating statutory criteria.	The statute, as applied here, would unconstitutionally override fit parents’ rights.	Court: Declined to resolve constitutionality on appeal; constitutionality should be addressed only if necessary after the district court applies the statutory merits standard.
3. What is the standard of review for a facial jurisdictional attack under §6‑1112(b)(1)?	(Implied) Suzette sought de novo review of the dismissal.	(Implied) Defendants relied on district court's ruling.	Court: A facial §6‑1112(b)(1) jurisdictional attack is reviewed de novo.

Troxel v. Granville, 530 U.S. 57 (2000) (parents have fundamental liberty interest; fit parents’ decisions get special weight)
Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006) (applies Troxel principles in Nebraska)
Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521 (2000) (addressed a broader visitation statute; distinguishable)
Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1 (2002) (statute found facially unconstitutional in cited jurisdiction)
Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016) (definition of subject matter jurisdiction in Nebraska)