Whilde v. Whilde
298 Neb. 473
Neb.2017Background
- Hannah (biological mother) and Margaret (nonbiological partner) lived together; child born Jan 2010 via artificial insemination. Neither woman was legally married to the other; Margaret did not complete an adoption.
- Texas court (Sept 27, 2012) named Hannah "Temporary Parent Sole Managing Conservator" and Margaret "Temporary Non-Parent Possessory Conservator," allocating possession/rights temporarily.
- Hannah moved with the child to Nebraska in Nov 2011; later (2014) Hannah filed to register/modify the Texas order in Nebraska, seeking sole legal and physical custody and termination of Margaret's visitation.
- Evidence showed Margaret provided care/support initially (2010–2011) but, after moving back to Texas in June 2014, had limited contact; experienced significant mental-health issues and hospitalizations; alleged unsafe home conditions in May 2014 prompted Hannah to limit visitation.
- Nebraska district court found Margaret had formerly stood in loco parentis but that relationship was severed by her extended lack of parental duties and instability; the court modified the Texas order, awarded sole legal and physical custody to Hannah, and terminated Margaret's custody/visitation and support obligations.
- Margaret appealed claiming (1) erroneous finding that in loco parentis status was severed, (2) severance improperly attributed to her conduct/mental health, (3) erroneous denial of any custody/visitation, and (4) that visitation was suspended as a discovery sanction. The Nebraska Supreme Court affirmed.
Issues
| Issue | Margaret's Argument | Hannah's Argument | Held |
|---|---|---|---|
| Whether court suspended visitation as a discovery sanction | March 21 order made visitation contingent on producing mental‑health records; sanctioning Margaret | Court ordered records and separately ordered visitation to resume for child safety; not a sanction | Court: no sanction; order set deadlines and resumed supervised Skype visits |
| Whether Margaret retained in loco parentis status | Margaret contends her in loco parentis status continued and thus she retained visitation rights | Hannah argues in loco parentis was transitory and had been lost due to Margaret's failure to perform parental duties | Court: Margaret once was in loco parentis, but status is transitory and was severed by her extended failure to discharge parental duties |
| Whether change in circumstances justified modifying Texas order | Margaret: limitations on contact were caused by Hannah, so modification is improper | Hannah: material change (diminished relationship, mental‑health instability, unsafe conditions) warranted modification | Court: material change occurred; modification to award Hannah sole custody was in child’s best interests |
| Whether termination of all visitation was in child's best interests | Margaret: total denial of contact is excessive and punitive | Hannah: continuing court‑ordered visitation would not benefit child given the diminished relationship and prior instability | Court: termination of court‑ordered custody/visitation was supported by the record and best‑interests analysis |
Key Cases Cited
- Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (recognizes in loco parentis is temporary and not equivalent to legal parenthood)
- Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (discusses in loco parentis rights and duties)
- Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (in loco parentis doctrine in custody context)
- In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (treats in loco parentis as standing doctrine; status is transitory)
- In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (once parental duties cease, in loco parentis terminates)
- Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (standard for modifying custody: material change and best interests)