In a recent Nebraska Supreme Court case, the Court reversed the district court’s ruling stating that it did err when it concluded the doctrine of in loco parentis, did not apply to a non biological, non adoptive, same sex parent. This doctrine, Latin for “in the place of a parent” allows for a non-biological parent to be given the legal rights and responsibilities of a biological parent provided in the past, they held themselves out as the parent. The Supreme Court went on to say the non-biological mother did have standing to seek custody and visitation of the child regardless of any explicit statutory basis to support her claim of standing.
Latham and Schwerdtfeger, females, met in college and moved in together in 1985. After several years of living together, the parties discussed having a child. They ruled out adoption, and instead, it was decided that Schwerdtfeger would be the birth parent of the child. During the pregnancy, both parties attended appointments and both were present at the birth. Latham took maternity leave to care of Schwerdtfeger and the baby. After the birth, Latham continued her role as co-parent, helping to raise the minor child and supporting him both emotionally and financially. Latham even claimed the child referred to her as “Mom”.
In 2005 Latham and Schwerdtfeger separated, but both parties continued to parent the child. Starting in 2007, Schwerdtfeger began cutting down on Latham’s parenting time and finally in 2009, Latham filed a complaint for custody and visitation in the District Court for Douglas County. The Court ordered the parties to submit briefs on the issue of in loco parentis status and eventually the District Court determined the doctrine did not apply and ordered Latham’s complaint be dismissed with prejudice.
The Court stated that, “although Latham is neither a biological nor an adoptive parent of [child], and although we have concluded no statutory authority directly confers standing on Latham, a review of our jurisprudence indicates that the Legislature did no intended that statutory authority be the exclusive basis of obtaining court-ordered visitation…We have long applied the common-law doctrine of in loco parentis to afford rights to nonparents where the exercise of those rights is in the best interests of the child.”
Because this exact issue had not been determined by the court, it looked to other courts that have applied this doctrine and found an Arkansas case that said, “simply put, the focus of the doctrine of in loco parentis ‘should be on what, if any, bond has formed between the child and the non-parent.'” Bethany v. Jones, 2011 Ark. 67,11. Using this reasoning, the Court concluded the undisputed facts show that Latham has rights which are entitled to considerations and has standing based on the doctrine of in loco parentis.
To see the full court opinion:
If you are in a same sex relationship and are concerned about your rights as parent,contact Husker Law so we can help you build your case for custody.