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Jennifer T. v. Lindsay P.

Supreme Court of Nebraska

February 2, 2018

Jennifer T., appellant,
Lindsay P., appellee.

         1. Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law.

         2. Parent and Child: Standing: Words and Phrases. In loco parentis is a common-law doctrine that gives standing to a nonparent to exercise the rights of a natural parent when the evidence shows that the nonparent's exercise of such rights is in the child's best interests.

         3. Parent and Child. In order to stand in loco parentis, one must assume all obligations incident to the parental relationship.

         4. Parent and Child: Parental Rights. A person in loco parentis generally holds the same rights as a lawful parent. However, in loco parentis status does not, by itself, eclipse the superior nature of the parental preference accorded to biological or adoptive parentage.

         5. Actions: Parent and Child: Standing. In the face of a natural parent's objection, in loco parentis gives standing to litigate whether the child's best interests are served by maintaining the in loco parentis relationship.

         6. Parent and Child. In loco parentis status is, unlike biological and adoptive parentage, transitory.

         7. Actions: Parent and Child. A litigant cannot seek a declaration of permanent parental status under the in loco parentis doctrine.

         8. Parent and Child. 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.

         9. ___. Termination of the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.

         10. Courts: Jurisdiction: Adoption: Minors. An order of consent under Neb. Rev. Stat. § 43-104(1)(b) (Reissue 2016) granted by the district [298 Neb. 801] court does nothing more than permit the county court, as the tribunal having exclusive original jurisdiction over adoption matters, to entertain such proceedings.

         11. Adoption. An order of consent under Neb. Rev. Stat. § 43-104(1)(b) (Reissue 2016) is not a determination of the child's best interests or any other issue pertaining to adoption.

         12. Courts: Jurisdiction: Adoption. The consent under Neb. Rev. Stat. § 43-104(1)(b) (Reissue 2016) can be understood as a limited deferral to the adoption court of the first court's jurisdictional priority.

         13. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when different state courts have concurrent original jurisdiction over the same subject matter, the court whose power is first invoked by proper proceedings acquires jurisdiction to the exclusion of all tribunals to adjudicate the rights of the parties.

         14. ___: ___ . Two courts cannot possess at the same time the power to make a final determination of the same controversy between the same parties.

         15. ___: ___ .A court with jurisdictional priority can choose to relinquish it.

         16. ___: ___. Jurisdictional priority is a matter of judicial administration and comity. It is not to protect the rights of the parties but the rights of the courts to coordinate jurisdiction to avoid conflicts, confusion, and delay in the administration of justice.

         17. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction over an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken.

         18. Final Orders: Appeal and Error. Having a substantial effect on a substantial right depends most fundamentally on whether the right could otherwise effectively be vindicated through an appeal from the final judgment.

         19. ___: ___ . Generally, an immediate appeal from an order is justified only if the right affected by the order would be significantly undermined or irrevocably lost by waiting to challenge the order in an appeal from the final judgment.

         20. Adoption. Orders of consent under Neb. Rev. Stat. § 43-104(1)(b) (Reissue 2016) do not affect a substantial right, because they do not resolve the issue of adoption.

         21. Injunction: Final Orders. Orders staying proceedings to await the termination of related proceedings in another court are usually not final.

         22. ___: ___ . The finality of an order granting a stay depends upon the practical effect and impact the stay order might have on the relief requested by the litigants.

         [298 Neb. 802] 23. Injunction: Dismissal and Nonsuit. A substantial right is affected by an order granting a stay if its effect is tantamount to a dismissal or to a permanent denial of the requested relief.

         24. Final Orders: Appeal and Error. It is the effect on the appellant's rights, not another's, that justifies the immediate review of an interlocutory order.

         25. Dismissal and Nonsuit: Moot Question. The mere possibility of mootness is not the functional equivalent of a dismissal or a permanent denial of the requested relief.

         26. Injunction: Dismissal and Nonsuit. A temporary stay that merely preserves the status quo pending a further order is not an order that amounts to a dismissal of the action or that permanently denies relief to a party.

         27. Courts: Jurisdiction. A litigant's substantial rights are not affected by the mere fact that one court has determined that the interests of judicial administration are best served by temporarily deferring jurisdictional priority to another court of this state.

         Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Appeal dismissed.

          Lindsay Belmont, of Koenig Dunne, PC, L.L.O., for appellant.

          Desirae M. Solomon for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.


         The former partner of a biological mother who conceived via in vitro fertilization brought a custody action in district court based on her alleged in loco parentis status to the child. The biological mother and her wife subsequently filed a petition in county court for stepparent adoption. The district court consented to the adoption and stayed the custody action pending the resolution of the adoption petition. We must determine whether the consent to adoption or the order staying the custody action presents a final order.

         [298 Neb. 803] BACKGROUND

         Lindsay P. and Jennifer T. were in a committed relationship from 2001 to 2012. During the course of that relationship. Lindsay conceived Chase T. by artificial insemination through an anonymous donor. Chase was born in 2010, and Jennifer stayed home to care for him while Lindsay worked outside the home.

         Lindsay and Jennifer separated in 2012, but they continued to coparent Chase. They agreed to a parenting schedule under which Lindsay had Chase on Mondays and Tuesdays, Jennifer had Chase on Wednesdays and Thursdays, and they alternated weekend parenting time. Lindsay married Jessica P. in 2015.

         On August 12, 2015, Jennifer filed a complaint in the district court for Douglas County for initial determination of custody and to establish support. The complaint, as amended, alleged that Jennifer has stood in loco parentis for Chase since his birth, assuming all rights, responsibilities, and obligations incident to a lawful parental relationship. Jennifer sought sole legal and physical custody of Chase, with reasonable parenting time to be awarded to Lindsay. Jennifer also sought child support and an order requiring both parties to share in medical, educational, and other expenses relating to Chase's care.

         Approximately 1 month after Jennifer's custody action was filed, Lindsay and Jessica filed a petition for stepparent adoption in the county court for Douglas County. Lindsay filed a motion for the district court to consent to the stepparent adoption, under Neb. Rev. Stat. § 43-104 (Reissue 2016).

         Jennifer filed a motion in county court to intervene in the adoption proceeding and to stay the adoption proceeding pending the custody action. At the same time, Jennifer filed a motion in the district court seeking to enjoin Lindsay from proceeding in the county court adoption matter.

         Lindsay moved in district court for summary judgment or dismissal of the custody action. Rather than ruling on [298 Neb. 804] Lindsay's motion, the district court stayed the custody action pending resolution of the adoption proceeding.

         Subsequently, in county court, Jennifer was denied the right to intervene. The county court also overruled her motion to stay the adoption proceedings. Jennifer appealed the county court's orders, and we reversed.

         We explained in In re Adoption of Chase T.[1] that the county court lacked jurisdiction to issue its order dismissing Jennifer's complaint to intervene and overruling her motion to stay the adoption proceeding, because the county court had failed to obtain the district court's consent to the adoption. The county court's order was vacated.[2]

         While the appeal in In re Adoption of Chase T. was pending, Jennifer moved in district court for a release of its stay. She alleged that per the district court's instructions, she had requested to intervene in the adoption proceedings, but that the request was denied for lack of standing. She further alleged that her "in loco parentis parental relationship must be established first, before she has a right to intervene in the adoption action." Jennifer also asserted that the district court had an obligation to retain its jurisdictional priority over the county court, because the custody action was filed first. The district court sustained the request to release the stay.

         After our opinion in In re Adoption of Chase T., Lindsay renewed her request for the district court's consent to the adoption.

         Jessica eventually filed a motion to intervene in the custody action. Lindsay then filed a motion asking the court to reissue its stay of the custody action-after ruling on her motion for consent to adoption and Jessica's motion to intervene.

         Lindsay argued that a stay was warranted, because a decision in the adoption proceeding was required before the court [298 Neb. 805] could make "an informed decision regarding all issues and litigants." She claimed that a stay would avoid unneeded litigation and expense. At a hearing on the motions for consent to adoption, intervention, and stay, Lindsay elaborated that she thought the adoption proceeding should be resolved first in order to protect Chase's right to be adopted, as well as to establish Jessica's status vis-a-vis any visitation rights that might ultimately be ordered in the custody action.

         Jennifer objected to the motions filed by Lindsay and Jessica. On the motion to intervene, Jennifer argued that any in loco parentis rights pertaining to Jessica were irrelevant to her own in loco parentis claim to custody. As for the motions for consent and stay, Jennifer asserted that the district court had jurisdictional priority over the county court. She also argued that a determination of her in loco parentis rights must be made by the district court before the adoption proceeds, because the county court, through its vacated order, had determined that she lacked standing. Finally, she asserted that a stay would cause irreparable harm to her in loco parentis right to parent Chase.

         On January 27, 2017, the court overruled the motion by Jessica to intervene in the custody action, but it consented to the adoption proceeding. In the same order, the district court granted the motion to stay the custody action "until ...

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