Nebraska Supreme Court Extends “In Loco Parentis” Doctrine to Same-Sex Co-Parent

The Nebraska Supreme Court has joined the growing list of state courts that have adapted the common law doctrine of "in loco parentis," which has been used to consider parental rights of stepparents and grandparents, to provide a basis for allowing same-sex co-parents to seek to preserve their relationships with children after the end of a relationship with a biological or adoptive parent.  Ruling in  Latham v. Schwerdtfeger, 282 Neb. 121, 2011 Westlaw 3763776 (August 26, 2011), six members of the court joined in Justice Lindsey Miller-Lerman's opinion.  One member of the seven-member court did not participate in the case.

According to the court's opinion, Teri A. Latham and Susan Rae Schwerdtfeger met in college and began living together in 1985.  After several years of living together, they began discussing having a child and, ruling out adoption, decided that Susan would be the birth mother.  After several attempts at donor insemination failed, they successfully resorted to in vitro fertilization, and their son, P.S., was born in 2001.  They shared parenting duties and expenses, and P.S. referred to Teri as "Mom."  Unfortunately, the relationship between the women broke down, and Teri moved out of the family home in 2006.  She continued to maintain a relationship with P.S. through visiting and telephoning, but Susan began cutting down the frequency of contact and by 2009 it had become slight.  After they terminated their joint bank account in 2007, Teri ceased contributing financial support.

Teri filed a lawsuit in Douglas County District Court in 2009, seeking an order of custody and visitation.  District Judge Marlon A. Polk concluded that since Teri was neither the biological nor adoptive parent of P.S., she lacked standing to seek such an order, and dismissed the case, finding that Nebraska's "in loco parentis" doctrine would not apply where the plaintiff had no legal relationship with the child's parent.  At the same time, Judge Polk also ruled that even if Teri had standing, the facts would not support her claim to parental rights, and granted Susan's motion for summary judgment.  Nebraska has no intermediate appellate court, so Teri's appeal went directly to the state supreme court.

Justice Miller-Lerman pointed out that Nebraska courts have recognized the doctrine of "in loco parentis" in cases involving stepparents seeking to preserve a relationship with their former spouse's children, and have also used it in one case to grant parental rights to a grandparent who had formed a parental bond with a child.  The court explained that "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, and the rights, duties, and liabilities of such person are the same as those of the lawful parent."

The question the court confronted in this case was whether to extend that doctrine to a dispute between same-sex co-parents, where there was no legal relationship between the parents. As Nebraska forbids same-sex marriage and does not make available civil unions or domestic partnership for same-sex couples, Teri and Susan had no legal relationship recognized by the state.

To explore this question, the court conducted an extensive review of decisions from other states as well as scholarly articles, and concluded that the trend of legal authority was in the direction of applying the "in loco parentis" doctrine to same-sex couples who had been raising children together.  The court cited and quoted extensively from appellate rulings in Pennsylvania, Washington, Wisconsin, and Arkansas, all of which concluded that it was appropriate to recognize the standing of a same-sex co-parent to seek custody or visitation after the break-up of a relationship with the child's biological or adoptive parent. 

"The courts that have applied the doctrine of in loco parentis in cases such as ours," wrote Justice Miller-Lerman, "have looked to the purpose of the doctrine and noted that the focus of an in loco parentis analysis must be on the relationship between the child and the party seeking in loco parentis status," in order to determine whether a parent-child bond had been formed during the time that the plaintiff had participated in parenting the child. 

She quoted from a Pennsylvania ruling on the justification for applying the doctrine: "The in loco parentis basis for standing recognizes the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child's best interest.  Thus, while it is presumed that a child's best interest is served by maintaining the family's privacy and autonomy, 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 eye a stature like that of a parent.  Where such a relationship is shown, our courts recognize that the child's best interest requires 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."

The court said that the doctrine "must be applied flexibly and is dependent upon the particular facts of each case."  In this case, the court said, the district judge clearly erred in concluding as a matter of law that the doctrine did not apply, since there was uncontradicted evidence that Teri had played a full parental role during the early years of P.S.'s life, and that her factual allegations would support her claim to standing under the doctrine of "in loco parentis."

Of course, that doesn't end the case, since the ultimate issue for the court is whether it is in the best interest of P.S. to order that Teri be allowed to re-establish and maintain her parental relationship with the child through shared custody or visitation.  As to this, Teri and Susan had asserted different versions of the facts about Teri's relationship with the child after she moved out of the family home.  The Supreme Court decided that "there are genuine issues of material fact which preclude entry of summary judgment," and that it had been "premature" for the district court to award summary judgment to Susan. 

The trial judge's error, said the court, was that the court focused on the relationship between Teri and Susan — and particularly on the breakdown of that relationship – rather than on the relationship between Teri and P.S.  The court sent the case back to the trial court to sort out the factual allegations and determine whether Teri's relationship with P.S. was sufficient to justify an order in her favor.

"We conclude that Latham has standing based on the doctrine of in loco parentis and that the district court erred when it concluded that the doctrine of in loco parentis did not apply to this case," concluded the court.  "Our opinion does not speak to Latham's chance of success on the merits, but it merely affords her the opportunity to fully litigate the issues.  Latham has made a meritorious claim of standing to seek enforcement of her claimed right to custody and visitation of P.S."

Tyler C. Block and Elizabeth Stuht Borchers of the firm of Marks, Clare & Richards represent Teri Latham.  Angela Dunne Tiritilli and Susan A. Koenig of the partnership of Koenig & Tiritilli represent Susan Rae Schwerdtfeger.  Kelle Westland of the law firm of Raynor, Rensch & Pfeiffer submitted an amicus brief on behalf of the National Center for Lesbian Rights, supporting Teri Latham's argument for application of the in loco parentis doctrine to cases of this type. 

In an interview with the Associated Press published shortly after the opinion was released, Tyler Block hailed the ruling, saying that the court "got it exactly right."  "They applied Nebraska law and helped give clarification on how it applies in these particular situations."  Angela Tiritilli agreed that the ruling would help clarify parental rights in the state, while commenting that her client was disappointed because this will probably mean several more years of court proceedings in the case.  But, she said, "What we're seeing here is a good trend; the court is not simply dismissing same-sex parental rights."

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