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State on behalf of Waters v. Bentley

Court of Appeals of Nebraska

January 14, 2020

State of Nebraska on behalf of Maci Jane Waters. a minor child, appellee,
v.
mark lawrence Bentley, appellant, Pamela D. Waters, APPELLEE, AND DEBRA S. WATERS, 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. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3.___: ___ . A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.

         4. 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 in the controversy, a fit biological or adoptive parent has a superior right to custody of the child.

         5.___: ___ . 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.

         6.___: ___ . The parental superior right to child custody protects not only the parent's right to companionship, care, custody, and management of [27 Neb.App. 946] his or her child, but also protects the child's reciprocal right to be raised and nurtured by a biological or adoptive parent.

         7. Constitutional Law: Parent and Child. Establishment and continuance of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic constitutional rights.

         8. Child Custody: Parental Rights. 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.

         9.___: ___ . Unlike biological and adoptive parenthood, the status of in loco parentis is temporary, flexible, and capable of being both suspended and reinstated. In loco parentis status alone does not eclipse the superior nature of the parental preference doctrine in custody disputes.

         10. Parental Rights. Parental rights may be forfeited by substantial, continuous, and repeated neglect of a child and a failure to discharge the duties of parental care and protection.

         11. Child Custody: Parental Rights. Allowing a third party to take custody, even for a significant period of time, is not the equivalent to forfeiting parental preference.

         12.___: ___ . The courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right.

         13. Child Custody: Parental Rights: Proof. Clear and convincing evidence of substantial, continuous, and repeated neglect of a child must be shown in order to overcome the parent's superior right.

         14. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

          Appeal from the District Court for Adams County: Stephen R. Illingworth, Judge. Reversed and remanded with directions.

          Shane M. Cochran, of Snyder, Hilliard & Cochran, L.L.O., for appellant.

          Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges. [27 Neb.App. 947]

          BISHOP, JUDGE.

         INTRODUCTION

         Mark Lawrence Bentley is the biological father of Maci Jane Waters, a minor child, and he appeals from an order of the Adams County District Court granting sole legal and physical custody of Maci to Maci's maternal grandmother, Debra S. Waters, subject to parenting time for Mark. Mark challenges the district court's determination that a parental preference was inapplicable to him and that the custody award was in Maci's best interests. We conclude the district court abused its discretion when it did not recognize Mark's ...


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