State of Nebraska on behalf of Lilliana L., A MINOR CHILD, APPELLEE,
HUGO C., APPELLANT, and Theresa L., intervenor-appellee.
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.
Parent and Child: Words and Phrases. A
person standing in loco parentis to a child is one who 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.
___. The term "in loco parentis" refers to a person
who has fully put himself or herself in the situation of a
lawful parent by assuming all the obligations incident to the
parental relationship and who actually discharges those
Parent and Child: Intent. The assumption of
the parental relationship is largely a question of intention
which should not lightly or hastily be inferred.
Parent and Child. The parental relationship
should be found to exist only if the facts and circumstances
show that the individual means to take the place of the
lawful father or mother not only in providing support but
also with reference to the natural parent's office of
educating and instructing and caring for the general welfare
of the child.
Appeal and Error. Appellate courts will not
consider issues on appeal that were not presented to or
passed upon by the trial court.
Child Custody: Parental Rights. The parental
preference doctrine provides that in the absence of a
statutory provision otherwise, in a child custody controversy
between a biological or adoptive parent and one who is
neither a biological nor an adoptive parent of the child
involved [26 Neb.App. 924] in the controversy, a fit
biological or adoptive parent has a superior right to custody
of the child.
___. The right of a parent to the custody of his or her minor
child is not lightly to be set aside in favor of more distant
relatives or unrelated parties, and the courts may not
deprive a parent of such custody unless he or she is shown to
be unfit or to have forfeited his or her superior right to
___. The best interests of the child are important in
resolving a child custody dispute, but a parent's
superior right to custody must be given its due regard, and
absent its negation, a parent retains the right to custody
over his or her child.
Child Custody: Parental Rights:
Presumptions. Parental preference creates a
presumption in favor of parental custody.
Child Custody: Parental Rights: Proof. The
parental preference doctrine, by definition, is a preference,
and it will be applied to a child custody determination
unless it is shown that the lawful parent is unfit or has
forfeited his or her superior right or the preference is
negated by a demonstration that the best interests of the
child lie elsewhere.
Child Custody: Words and Phrases. Parental
unfitness means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a
reasonable parental obligation in child rearing which has
caused, or probably will result in, detriment to a
Child Custody. Evidence of unfitness should
be focused upon a parent's ability to care for a child,
and not any other moral failings a parent may have.
___. Evidence of unfitness should be focused upon a
parent's present ability to care for a child, and
evidence of a parent's past failings is pertinent only
insofar as it suggests present or future faults.
Child Custody: Parental Rights. The quantum
of proof necessary to prove unfitness is analogous to the
proof necessary to terminate parental rights.
___: ___. While preference must be given to a biological or
adoptive parent's superior right to custody where the
parent is not unfit and has not forfeited his or her parental
rights, a court also considers the child's best interests
in making its custody determination.
from the District Court for Burt County: John E. Samson,
D. Caldwell, of Caldwell Law, L.L.C., for appellant.
Neb.App. 925] Michael J. Tasset and Denise E. Frost, of
Johnson & Mock. PC, L.L.O., for intervenor-appellee.
Pirtle, Bishop, and Arterburn, Judges.
the biological father of Lilliana L. (Lilli), born in April
2012, appeals from an order of the district court for Burt
County awarding custody of Lilli to Theresa L., Lilli's
maternal aunt. Hugo challenges the court's determining
that Theresa had standing to seek custody based on the in
loco parentis doctrine, allowing Theresa to intervene when