In Loco Parentis and the Role of Parental Preference Principles

By Aaron Smeall, Partner, Smith Pauley LLP

The Nebraska Supreme Court’s recent opinion in Noland v. Yost, 315 Neb. 563 (2023) examined how and to what extent the parental preference doctrine applies to a stepparent’s claim of in loco parentis custody and visitation rights to a stepchild in a divorce proceeding. Nebraska law provides that its divorce statutes give the court “complete jurisdiction over the custody, support, and welfare of all minor children who are touched upon by the divorce proceedings and related issues”[1] including stepparent in loco parentis claims. The court noted that a person who stands in loco parentis is “one who has put himself or herself in the situation of a lawful parent by assuming he obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption.”[2] Noland, citing Austin v. Austin, 147 Neb. 109 (1946).

The Court noted that in loco parentis status, unlike biological and adoptive parenthood, is “temporary, flexible, and capable of being both suspended and reinstated.”[3] The Noland Court found itself at the intersection between the temporary and flexible nature of in loco parentis status and parental preference principles—often referred to as the parental preference doctrine.

Parental preference principles have been recognized in Nebraska[4] and the United States Supreme Court has since affirmed that such principles arise under the Due Process Clause of the Fourteenth Amendment[5]. One such principle of parental preference is the “presumption that fit parents act in the best interests of their children.”[6]

In Noland, the biological mother cut off all contact between the minor child and her stepfather, Noland, when the divorce proceedings commenced.  The trial court determined that because there was no evidence of unfitness on the part of the biological mother, she was entitled to a presumption that her decision to sever the relationship between Noland and the minor child was in the minor child’s best interests. The trial court held that Nebraska’s parental preference doctrine permitted natural parents to unilaterally terminate an in loco parentis relationship and the court may not interfere in that decision. Based on this reasoning, the trial court did not permit Noland to pursue his claim of in loco parentis.

In its opinion, the Nebraska Supreme Court made clear that parental preference principles create a rebuttable presumption but do not insulate parental decisions from judicial review.[7] Further, the Court noted that there is nothing in our jurisprudence to suggest that a parent has an absolute right to terminate an in loco parentis relationship between a stepparent and stepchild.

Ultimately, the Court reaffirmed that “when an in loco parentis relationship is established, one who stands in loco parentis should be allowed to litigate whether it is in the child’s best interest to continue the relationship even over the natural parent’s objection.”[8]

[1] Noland, at 588, citing Hickenbottom v. Hickenbottom, 239 Neb. 579 (1991).

[2] Id., at 582 citing Austin v. Austin, 147 Neb. 109 (1946).

[3] Id., at 584. See Windham v. Griffin, 295 Neb. 279 (2016).

[4] Stuhr v. Stuhr, 240 Neb. 239 (1992).

[5] Troxel v. Granville, 530 U.S. 57 (2000).

[6] Id., at 68, n4.

[7] Noland, at 592 citing Hamit v. Hamit, 271 Neb. 659 (2006).

[8] Id., at 593

Aaron F. Smeall is a partner at Smith Pauley. Aaron’s practice focuses on complex litigation in the State and Federal Courts of Nebraska and Iowa. With 19 years experience advising both individuals facing civil disputes and businesses in their formation, governance, contract negotiations and enforcement, Aaron has an established foundation for reasoned, measured guidance to avoid the pitfalls that lead to litigation. When litigation is unavoidable, Aaron represents individuals in bench or jury trials including claims arising from personal injury or personal liability and businesses in a variety of areas, including litigation arising from transactions, contracts, member or shareholder disputes and construction defects.

Aaron’s diverse clientele and practice have afforded him the opportunity to practice across a variety of legal disciplines, develop an in-depth understanding of interrelated issues and provide sound legal guidance and effective representation based on that practical experience.