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Whilde v. Whilde

Supreme Court of Nebraska

December 22, 2017

Hannah Whilde, appellee,
Margaret Whilde, appellant.

         1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

         2. Parent and Child. During a period in which an individual stands in loco parentis to a child, he or she has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.

         3. ___. Because in loco parentis status is transitory, once the person alleged to be in loco parentis no longer discharges all duties incident to the parental relationship, the person is no longer in loco parentis. Termination of the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.

         4. Child Custody: Modification of Decree: Proof. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. First, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests.

         Appeal from the District Court for Otoe County: David K. Arterburn, Judge. Affirmed.

          Anthony W. Liakos, of Govier, Katskee, Suing & Maxell. PC, L.L.O., for appellant.

          [298 Neb. 474] Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.. L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and Riedmann, Judge.

          Miller-Lerman, J.


         Margaret Whilde appeals the order of the district court for Otoe County, Nebraska, which modified a prior child custody order filed by a Texas court, awarded sole legal and physical custody of the child to Hannah Whilde, and ordered that Margaret be granted no further rights of custody or visitation with regard to the child. We affirm the district court's order.


         Margaret and Hannah met in 1999 and became involved in a romantic relationship during which they lived together. They lived in Mexico when they first met, but they later moved to Lincoln, Nebraska, for a time before they moved to Austin, Texas, in 2003. After moving to Texas, both Margaret and Hannah had their last names legally changed to "Whilde." The parties disputed whether they had a commitment ceremony soon after they met in 1999 and whether they considered themselves to be married, but the record indicates that the two had never been legally married.

         In January 2010, Hannah gave birth to a baby girl. The child had been conceived by artificial insemination, and any parental rights of the biological father were terminated by a court in Texas. Margaret and Hannah were still in a relationship and living together at the time the child was born. Although the parties dispute whether there was an intent on the part of either Margaret or Hannah for Margaret to be considered a parent to the child, and although Margaret testified that she planned to adopt the child, Margaret conceded that she had not formally adopted the child.

         The relationship between Margaret and Hannah began to decline after the child's birth. Although the parties dispute [298 Neb. 475] the reasons and the circumstances surrounding their separation, in November 2011, Hannah moved back to her parents' home in Otoe County and she took the child with her. Soon after Hannah left Texas, Margaret filed an action in the district court for Travis County, Texas, in which she sought to have determined her legal rights with respect to the child. The Texas court entered an initial order in which it determined that Margaret had legal standing to assert rights with respect to the child and set forth certain rights and duties that Margaret and Hannah would share as "joint managing conservators" of the child.

         After further proceedings and hearings, the Texas court filed an additional order on September 27, 2012. The order was denominated "Temporary Orders, " and in the order, the court appointed Hannah as "Temporary Parent Sole Managing Conservator" and Margaret as "Temporary Non-Parent Possessory Conservator" of the child. The order then set forth certain rights and duties that each party would have during her periods of possession of the child, certain rights and duties that each party would have at all times as conservator, and certain rights that Hannah would have exclusively. The rights that Hannah was granted exclusively included, inter alia, the right to direct the moral and religious training of the child, the right to designate the primary residence of the child without geographic restriction, and the right to represent the child in legal actions and to make other decisions of substantial legal significance concerning the child.

         The court then set forth terms for each party's periods of possession of the child. The order provided that Hannah would have possession of the child at all times other than times specified in the order when Margaret would have possession. The order generally provided that Margaret would have possession for one 4-day period each month and that Margaret's period of possession would increase to include certain specified periods after the child reached the age of 3. With regard to support, the order provided that neither party was obligated to pay direct child support to the other and that, [298 Neb. 476] instead, each party would be responsible for expenses that arose during her period of possession. Margaret was ordered to provide health insurance for the child beginning November 24, 2012. The order stated that the temporary orders would "continue in force until the signing of the final order or until further order of this Court." It appears that no further orders were filed by the Texas court until after the present action was filed in Nebraska.

         On June 6, 2014, Hannah filed in the district court for Otoe County an application to register the Texas court's September 27, 2012, order pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Reissue 2016). She requested that the Nebraska court set aside the Texas order and modify the custody of the child in accordance with Nebraska law. Hannah alleged that she and the child had lived in Nebraska City, Nebraska, since November 2011 and that Margaret was currently living in Auburn, Nebraska, and had lived in Nebraska for more than 1 year. Hannah alleged that she was the biological mother of the child and that the biological father had been denied any parental rights by the Texas court. Hannah further alleged that no enforcement action had been taken with regard to the Texas court order since its entry and that no effort had been taken to bring about entry of a final order. Hannah alleged that it would be in the best interests of the child that Hannah be given sole legal and physical custody of the child and that Margaret should have no rights to custody or visitation of the child.

         In her response, Margaret admitted much of the allegations in Hannah's complaint, but she requested that the complaint to modify the Texas order be dismissed and, to the extent Hannah requested a suspension of Margaret's visitations rights, that such request be denied.

         Margaret moved back to Texas in late June 2014, shortly after Hannah filed this action. It appears that Margaret's contact with the child was minimal thereafter. Hannah presented evidence at the trial in this matter that after Margaret moved [298 Neb. 477] back to Texas, Margaret had experienced significant mental health issues ...

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