Whilde v. Whilde
298 Neb. 473
| Neb. | 2017Background
- Hannah (biological mother) and Margaret (nonbiological partner) lived together and raised a child conceived by artificial insemination; Margaret never legally adopted the child.
- Texas court (2012) designated Hannah as Temporary Parent Sole Managing Conservator and Margaret as Temporary Non-Parent Possessory Conservator, granting Margaret periodic possession/visitation rights.
- Hannah and the child moved to Nebraska in November 2011; Hannah later registered and sought modification of the Texas order in Otoe County, Nebraska, alleging Margaret’s mental-health issues and unfit conditions.
- After Margaret moved back to Texas in mid-2014, her contact and support for the child became minimal; Hannah curtailed visitation citing safety and welfare concerns and obtained a protection order.
- Nebraska trial court found Margaret had once stood in loco parentis but that the relationship was severed (largely due to Margaret’s instability and failure to perform parental duties), found a material change in circumstances, awarded sole legal and physical custody to Hannah, and denied Margaret all visitation and support obligations.
Issues
| Issue | Plaintiff's Argument (Hannah) | Defendant's Argument (Margaret) | Held |
|---|---|---|---|
| Whether March 2016 order suspended Margaret’s visitation as a discovery sanction | March 21 order was protective, not punitive; visitation resumed | The order improperly conditioned visitation on production of mental-health records (a discovery sanction) | Court found no discovery sanction; visitation was ordered to resume and the record-production date was separate from visitation resumption |
| Whether Margaret had or retained in loco parentis status | Margaret’s Texas-designated conservatorship was temporary; Nebraska should consider current best interests | Margaret contended she had in loco parentis status based on prior caregiving and Texas order | Court agreed Texas status was analogous to in loco parentis but that in loco parentis is transitory and may be lost |
| Whether there was a material change in circumstances since the Texas order | Margaret’s relationship with the child deteriorated; mental-health hospitalizations and minimal contact/support constituted material change | Margaret argued Hannah prevented contact and that she sought to maintain the relationship | Court held there was a material change: Margaret had not discharged parental duties for ~2 years and relationship had materially diminished |
| Whether terminating Margaret’s custody/visitation rights served the child’s best interests | Continued court-ordered rights were not in the child’s best interests given the severed relationship and safety/ welfare concerns | Margaret argued she had regained stability and should retain visitation rights | Court held termination of Margaret’s court-ordered custody/visitation was in the child’s best interests and affirmed award of sole legal and physical custody to Hannah |
Key Cases Cited
- Windham v. Griffin, 295 Neb. 279 (recognizes in loco parentis is temporary and not equivalent to lawful parenthood)
- Latham v. Schwerdtfeger, 282 Neb. 121 (discusses in loco parentis doctrine and standing)
- Weinand v. Weinand, 260 Neb. 146 (uses in loco parentis in custody context)
- In re Guardianship of Brydon P., 286 Neb. 661 (explains in loco parentis is a standing doctrine and transitory)
- In re Interest of Destiny S., 263 Neb. 255 (states termination of in loco parentis occurs when duties cease)
- Hopkins v. Hopkins, 294 Neb. 417 (standard for modifying custody requires material change and best interests analysis)