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State ex rel. Lilliana L. v. Hugo C.

Court of Appeals of Nebraska

February 12, 2019

State of Nebraska on behalf of Lilliana L., A MINOR CHILD, APPELLEE,
v.
HUGO C., APPELLANT, and Theresa L., intervenor-appellee.

         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: 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.

         3. ___: ___. 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 obligations.

         4. Parent and Child: Intent. The assumption of the parental relationship is largely a question of intention which should not lightly or hastily be inferred.

         5. 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.

         6. Appeal and Error. Appellate courts will not consider issues on appeal that were not presented to or passed upon by the trial court.

         7. 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.

         8. ___: ___. 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 such custody.

         9. ___: ___. 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.

         10. Child Custody: Parental Rights: Presumptions. Parental preference creates a presumption in favor of parental custody.

         11. 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.

         12. 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's well-being.

         13. 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.

         14. ___. 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.

         15. Child Custody: Parental Rights. The quantum of proof necessary to prove unfitness is analogous to the proof necessary to terminate parental rights.

         16. ___: ___. 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.

          Appeal from the District Court for Burt County: John E. Samson, Judge. Affirmed.

          Ryan D. Caldwell, of Caldwell Law, L.L.C., for appellant.

         [26 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.

          Pirtle, Judge.

         INTRODUCTION

         Hugo C, 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 she ...


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