Jurisdiction: Appeal and Error. A
jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of
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
Parent and Child. In order to stand in loco
parentis, one must assume all obligations incident to the
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.
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
Parent and Child. In loco parentis status
is, unlike biological and adoptive parentage, transitory.
Actions: Parent and Child. A litigant cannot
seek a declaration of permanent parental status under the in
loco parentis doctrine.
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
Termination of the in loco parentis relationship also
terminates the corresponding rights and responsibilities
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.
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.
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.
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.
___: ___ . Two courts cannot possess at the same time the
power to make a final determination of the same controversy
between the same parties.
___: ___ .A court with jurisdictional priority can choose to
___: ___. 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.
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
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
___: ___ . 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.
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
Injunction: Final Orders. Orders staying
proceedings to await the termination of related proceedings
in another court are usually not final.
___: ___ . 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.
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.
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.
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.
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.
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.
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
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
Neb. 803] BACKGROUND
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.
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.
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
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).
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.
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.
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.
explained in In re Adoption of Chase
T. 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.
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.
our opinion in In re Adoption of Chase T., Lindsay
renewed her request for the district court's consent to
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.
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.
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.
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