State on behalf of Tina K. v. Adam B.
307 Neb. 1
| Neb. | 2020Background
- Destiny B., born 2003; initial custody shifted between parents after Tina K.’s drug convictions and incarcerations; Adam B. obtained custody in 2008 and later placed Destiny with Jo K. beginning in 2014.
- Jo cared for Destiny for several years, assumed full parental responsibilities, and stood in loco parentis; Destiny became established in Gretna (school, friends, therapy) under Jo’s care.
- Tina had prior convictions for attempted delivery of a controlled substance, was incarcerated in 2014, but by trial (2018–2019) had housing, employment, and was found by the district court to be a fit parent.
- Tina filed to modify custody (2017) seeking sole physical custody; Jo intervened asserting her loco parentis role and seeking relief in the child’s best interests.
- The district court found two material changes (Jo’s loco parentis status and Adam’s inability to parent), found Tina fit, but concluded parental preference was negated and awarded custody to Jo based on best interests.
- The Nebraska Supreme Court reversed and remanded, clarifying that parental preference may be negated only in an exceptional case requiring proof of serious physical or psychological harm or a substantial likelihood of such harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether parental preference was negated so custody could be awarded to a nonparent (Jo) | Tina: parental preference controls because she is a fit parent and has not forfeited rights | Jo/Adam: Destiny’s best interests favor Jo due to stability, therapy continuity, school and social ties in Gretna | Court: parental preference can be negated only in "exceptional" cases; such cases require proof of serious physical/psychological harm or substantial likelihood thereof; remanded to apply this standard |
| Whether Tina is a fit parent | Tina: she is now stable, employed, and involved in Destiny’s life | Jo/Adam: past drug convictions, instability, and long absence undermine fitness | District court found Tina fit; Supreme Court accepted that finding on de novo review for purposes of the parental-preference analysis |
| Whether Tina forfeited parental preference by allowing third-party custody | Jo/Adam: extended placement with Jo and Tina’s limited parenting amounted to forfeiture | Tina: allowing third-party care is not forfeiture absent substantial, continuous neglect | Court: no clear and convincing evidence of forfeiture; mere long-term placement with a third party is not equivalent to forfeiting parental preference |
| Legal significance of in loco parentis status | Jo: her long-term, full caregiving should justify custody based on best interests | Tina: in loco parentis does not equal legal parentage or automatically overcome parental preference | Court: in loco parentis does not eclipse the superior parental preference; nonparents remain subordinate absent exceptional proof of harm |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental rights receive strong constitutional protection)
- Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (Neb. 2016) (parental preference ordinarily controls; cases defeating it are "exceptional")
- Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (N.J. 2000) (exceptional-circumstances standard requires proof of serious physical or psychological harm or substantial likelihood thereof)
- In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (Neb. 2019) (discusses parental preference and related custody standards)
- Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (Neb. 2017) (distinguishes in loco parentis from legal parent status)
- Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (Neb. 2008) (clear-and-convincing evidence required to prove forfeiture of parental rights)