Noland v. Yost

998 N.W.2d 57

315 Neb. 568

Brian M. NOLAND, appellant,

v.Erin N. YOST, appellee.

No. S-22-254.

Supreme Court of Nebraska.

Filed December 15, 2023

Syllabus by the Court

1. Appeal and Error. When assignments of error are presented in the argument section of an appellate brief, rather than a designated assignments of error section, an appellate court may proceed as though the party failed to file a brief (providing no review at all) or, alternatively, may examine the proceedings for plain error.

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

3. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

4. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

6. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

7. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which the appeal is taken.

8. Final Orders. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.

9. Final Orders: Appeal and Error. Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter.

10. Final Orders: Appeal and Error. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.

11. Final Orders: Appeal and Error. To be appealable, an interlocutory order must satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022) and, where applicable, Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).

12. 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.

13. Parent and Child: Intent: Proof. The assumption of the relationship of in loco parentis is a question of intention, which may be shown by the acts and declarations of the person alleged to stand in that relationship.

14. Parent and Child. The primary consideration in an in loco parentis analysis is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship. These obligations include providing support for the child and providing day-to-day care for the child.

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

16. Parent and Child. In loco parentis status is not equivalent to status as a parent and does not entitle a person to all the same rights a legal parent would enjoy.

17. Parent and Child. Unlike biological and adoptive parenthood, the status of in loco parentis is temporary, flexible, and capable of being both suspended and reinstated.

18. Parent and Child. Under the common law, the in loco parentis relationship may be abrogated at will either by the party standing in loco parentis or by the child.

19. Parent and Child. Once a person alleged to be in loco parentis stops assuming the obligations incident to the parental relationship, the person no longer stands in loco parentis. Termination of the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.

20. Parental Rights. Natural parents have a fundamental right to make decisions concerning the care, custody, and control of their children.

21. Parent and Child: Child Custody. When the custody decision of a fit natural parent is subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

22. Constitutional Law: Parental Rights: Child Custody. Because natural and adoptive parents have a fundamental right to make decisions concerning the care, custody, and control of their minor children, which is constitutionally protected, custody disputes between a natural or adoptive parent and a nonparent are governed by the parental preference doctrine.

23. Parent and Child: Child Custody: Presumptions: Proof. The parental preference doctrine establishes a rebuttable presumption that the best interests of a minor child are served by placing custody of the child with his or her parent and, absent proof that a parent is unfit or has forfeited the right to custody, a parent may not ordinarily be deprived of the custody of a minor child. It may be possible to overcome the parental preference doctrine by showing the best interests of the child lie elsewhere, but such circumstances must be exceptional. In order for exceptional circumstances to negate the parental preference doctrine, there must be proof of serious physical or psychological harm to the child or a substantial likelihood of such harm.

24. Parent and Child: Child Custody. The parental preference doctrine applies in custody disputes between a natural or adoptive parent and one who stands in loco parentis.

25. Divorce: Parent and Child. When a stepparent divorces a child’s biological or adoptive parent, he or she is no longer that child’s stepparent.

26. Divorce: Jurisdiction: Visitation: Proof. In a divorce proceeding, the court has jurisdiction to allow stepparent visitation when the stepparent proves that an in loco parentis relationship was established with a stepchild during the marriage and visitation is in the child’s best interests.

27. Parent and Child. It is a stepparent’s desire to remain in an in loco parentis relationship with his or her spouse’s child that gives rise to the rights and corresponding responsibilities usually reserved for natural or adoptive parents.

28. Parent and Child. Parental preference principles do not insulate parental decisions from judicial review.

29. Parental Rights. A biological parent’s rights do not extend to erasing an in loco parentis relationship the parent fostered between his or her minor child and a former partner.

30. Parent and Child: Standing: Presumptions: Proof. It is presumed that a child’s best interests are served by maintaining the family’s privacy and autonomy, but that presumption must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eyes a stature like that of a parent. Where such a relationship is shown, the child’s best interests require that the third party be granted standing so as to have the opportunity to litigate fully the issue of whether that relationship should be maintained even over a natural parent’s objection.

31. Parental Rights. Parental preference principles do not give natural parents an absolute right to terminate, at will, an established in loco parentis relationship.

Appeal from the District Court for Sarpy County: Nathan B. Cox, Judge. Reversed and remanded for further proceedings.

Ashley L. Albertsen, of Oestmann & Albertsen Law, P.C., L.L.O., for appellant.

No appearance by appellee.

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

Stacy, J.

In this marital dissolution, the husband sought a judicial determination that he stood in loco parentis to his wife’s biological child so that he could litigate issues of custody and parenting time with his stepchild pursuant to Hickenbottom v. Hickenbottom.¹ In that case, we held that a dissolution court has jurisdiction to allow stepparent visitation when an in loco parentis relationship was established during the marriage and visitation with the stepparent is in the child’s best interests.

After holding an evidentiary hearing, the district court entered an order finding that although the husband had established an in loco parentis relationship with his stepchild during the marriage, he could not litigate issues of custody or parenting time in the divorce because the wife had effectively terminated the in loco parentis relationship by cutting off contact between the child and the husband once the divorce was filed. The court reasoned that the wife, as a fit natural parent, had an absolute right based on parental preference principles to unilaterally terminate the in loco parentis relationship involving her child, and the court believed it was "without power to infringe on a biological parent’s constitutional right to raise his/her own child nor overcome the constitutional presumption that a fit parent acts in the best interest of his/her child."

The husband filed this interlocutory appeal to challenge the district court’s order and, in particular, its legal conclusion that fit natural parents have an absolute right to unilaterally terminate an established in loco parentis relationship between their child and a stepparent.

For reasons we will explain, we conclude the husband has appealed from a final order under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2022). And although his appellate brief does not have a separate assignments of error section, we exercise our discretion to review the distinct court’s order for plain error.² We ultimately find plain error, and we therefore reverse...