Kane v. Kane, 311 Neb. 657

Suzette Kane (grandmother) filed a petition under Neb. Rev. Stat. § 43-1802 seeking visitation with her minor grandchildren after the parents’ divorce.
Shauna Kane (mother) and Michael Leonard (father) moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(1) (lack of subject-matter jurisdiction) and (b)(6), arguing the statute is unconstitutional as applied when both parents oppose visitation.
At the dismissal hearing the parents submitted affidavits alleging estrangement, limited prior contact, and that Suzette had been abusive or vindictive; Suzette submitted an affidavit asserting a significant beneficial relationship.
The district court dismissed the petition for lack of subject-matter jurisdiction, concluding the grandparent visitation statute unconstitutionally infringed the parents’ fundamental liberty to raise their children.
On appeal the Nebraska Supreme Court held the district court erred: the statutes vest jurisdiction in the district court to hear grandparent visitation petitions; a potential as-applied constitutional problem does not deprive the court of subject-matter jurisdiction.
The Supreme Court vacated the dismissal and remanded for the district court to apply the statutory merits standard (§ 43-1802(2)) (clear and convincing evidence of a significant beneficial relationship and that visitation is in the child’s best interests and will not adversely interfere with the parent-child relationship) before reaching any constitutional question.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court lacked subject-matter jurisdiction because granting grandparent visitation would infringe parents’ fundamental liberty to raise their children	Suzette: statutes grant the district court jurisdiction to decide grandparent visitation; any constitutional challenge should follow a merits determination	Shauna & Michael: exercising jurisdiction would require applying an unconstitutional statute as-applied when both fit parents oppose visitation	Court: District court has subject-matter jurisdiction; dismissal for lack of jurisdiction was error; remand to decide petition under statutory standard before addressing constitutionality

Troxel v. Granville, 530 U.S. 57 (recognizing parents’ fundamental liberty interest and cautioning against statutes that override fit parents’ decisions)
Hamit v. Hamit, 271 Neb. 659 (restating Troxel principles and the presumption favoring fit parents)
Lulay v. Lulay, 193 Ill.2d 455 (distinguishing case where broader statute was found unconstitutional)
Wickham v. Byrne, 199 Ill.2d 309 (addressing a grandparent-visitation statute struck down as facially unconstitutional)
Sanders v. Frakes, 295 Neb. 374 (explaining subject-matter jurisdiction principles in Nebraska)