Windham v. Griffin
295 Neb. 279
| Neb. | 2016Background
- Miracle born Sept 2011 to Lakisha Griffin; Griffin and cousin Annie Windham agreed Windham would care for Miracle temporarily.
- Miracle lived with Windham from Sept 2011 until Jan 8, 2013, when Griffin (with police) retrieved the child; Windham later obtained temporary custody by court order.
- Windham sued claiming she stood in loco parentis and sought custody and termination of parents’ rights; juvenile court and district court proceedings followed, with mediation attempts and appointment of an attorney for the child.
- At the Oct 21, 2015 custody trial, the district court found Windham stood in loco parentis, both women were fit, and Griffin had not forfeited parental rights.
- The district court applied the parental preference doctrine, awarded legal and physical custody to Griffin, and granted Windham substantial unsupervised visitation (every other weekend with overnight stays).
- Windham appealed, arguing in loco parentis status should place her on equal footing with Griffin and the court should decide custody solely by best interests.
Issues
| Issue | Plaintiff's Argument (Windham) | Defendant's Argument (Griffin) | Held |
|---|---|---|---|
| Does in loco parentis status place a nonparent on equal footing with a biological parent for custody? | In loco parentis confers the "same rights" as a lawful parent so parties should be equal. | In loco parentis gives standing but is not equivalent to parental status for custody preference. | Court: In loco parentis grants standing but does not overcome parental preference. |
| Does the parental preference doctrine apply when one party is a biological parent and the other stood in loco parentis? | Windham: parental preference should be ignored; apply only best-interests analysis. | Griffin: parental preference applies unless parent is unfit or has forfeited rights. | Court: Parental preference applies; it is a presumption favoring the biological parent. |
| Did Griffin forfeit her parental rights through extended placement with Windham or neglect? | Windham: Griffin’s long absence and Windham’s caregiving amount to forfeiture. | Griffin: She consistently sought reunification, visited, and regained custody in 2013; did not abandon parental role. | Court: Griffin did not forfeit rights; allowing third-party care does not necessarily forfeit parental preference. |
| When parental preference applies, can a nonparent’s ability to provide a materially better home overcome it? | Windham: She can provide a better environment; best interests favor Windham. | Griffin: Constitutional parental rights limit using "better home" as sole basis to remove custody. | Court: Better amenities alone do not overcome parental preference; best interests considered but preference remains unless negated. |
Key Cases Cited
- Latham v. Schwerdtfeger, 282 Neb. 121 (2011) (describes in loco parentis as conferring standing but not full equivalence to lawful parent in custody contexts)
- Weinand v. Weinand, 260 Neb. 146 (2000) (explains in loco parentis doctrine and its limits)
- Hickenbottom v. Hickenbottom, 239 Neb. 579 (1991) (discusses prior interpretations of in loco parentis and statutory contexts)
- Farnsworth v. Farnsworth, 276 Neb. 653 (2008) (holding that third-party custody does not automatically forfeit parental preference)
- In re Guardianship of D.J., 268 Neb. 239 (2004) (articulates parental preference doctrine grounded in parental constitutional rights)
- Stuhr v. Stuhr, 240 Neb. 239 (1992) (states parental preference rule that a fit biological parent has superior right absent forfeiture)