Whilde v. Whilde
298 Neb. 473
| Neb. | 2017Background
- Hannah (biological mother) and Margaret (nonbiological, never-adopted partner) lived together; child born Jan 2010 via artificial insemination; biological father's rights were terminated in Texas.
- Texas court (Sept. 27, 2012) designated Hannah as Temporary Parent Sole Managing Conservator and Margaret as Temporary Non-Parent Possessory Conservator, awarding Margaret limited possession/visitation rights; order was temporary.
- Hannah and child moved to Nebraska Nov. 2011; Hannah later registered/asked Nebraska court to set aside/modify the Texas order under the UCCJEA, seeking sole custody and to bar Margaret from visitation.
- Margaret moved back to Texas in June 2014; thereafter her contact with the child diminished and she experienced significant mental health problems and hospitalizations; Hannah curtailed visitation after safety/cleanliness concerns and obtained a harassment protection order.
- Nebraska district court found Margaret had once stood in loco parentis but that relationship was severed (largely due to Margaret’s instability and failure to perform parental duties), concluded a material change in circumstances existed, and awarded Hannah sole legal and physical custody, terminating Margaret’s custody/visitation rights.
- Margaret appealed, arguing (1) the in loco parentis relationship was not severed, (2) it was wrongly attributed to events in her life, (3) she should retain visitation rights, and (4) the court improperly suspended visitation as a discovery sanction; the Nebraska Supreme Court affirmed.
Issues
| Issue | Margaret's Argument | Hannah's Argument | Held |
|---|---|---|---|
| Whether March 21, 2016 order suspended visitation as a discovery sanction | March 21 order conditioned visitation on producing mental-health records and thus was an improper discovery sanction | Court acted to protect child pending resolution of mental-health concerns; orders addressed discovery and visitation separately | Court: not a discovery sanction; ordered records by April 1 and visitation to resume April 6; no abuse of discretion |
| Whether Margaret’s in loco parentis status persisted | Margaret: status continued and entitles her to custody/visitation rights | Hannah: although status existed earlier, it was transitory and was severed by Margaret’s lack of contact, instability, and failure to perform parental duties | Court: in loco parentis once existed but was severed; standing unaffected but rights eliminated |
| Whether there was a material change in circumstances warranting modification of the Texas order | Margaret: prior order should control; change not attributable to her or not material | Hannah: Margaret’s diminished role, minimal support, safety concerns, and mental-health decline constituted material change affecting child’s best interests | Court: material change shown; modification to award sole custody to Hannah appropriate |
| Whether terminating Margaret’s court-ordered visitation was in child’s best interests | Margaret: continuing visitation is beneficial; recent improvements show suitability | Hannah: diminished relationship and safety/history mean termination better serves child | Court: terminating visitation was within discretion and served child’s best interests |
Key Cases Cited
- Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (recognizes in loco parentis is temporary and not equivalent to lawful parenthood)
- Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (discusses in loco parentis doctrine in custody contexts)
- Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (in loco parentis doctrine and associated rights)
- In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (in loco parentis is a standing doctrine and is transitory)
- In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (once duties incident to parental relationship cease, in loco parentis ends)
- Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (standard for modifying custody: material change and best interests)