Latham v. Schwerdtfeger, S–10–742.
| Decision Date | 26 August 2011 |
| Docket Number | No. S–10–742.,S–10–742. |
| Citation | 282 Neb. 121,802 N.W.2d 66 |
| Parties | Teri A. LATHAM, appellant,v.Susan Rae SCHWERDTFEGER, appellee. |
| Court | Nebraska Supreme Court |
1. Child Custody: Visitation: Appeal and Error. Child custody determinations, and visitation 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. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
3. Standing: Jurisdiction. Standing relates to a court's power, that is, jurisdiction, to address issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.
4. Standing. Under the doctrine of standing, a court may decline to determine the merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination.
5. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.
6. Standing: Claims: Parties. To have standing, a litigant must assert the litigant's own rights and interests.
7. 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, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.
8. Parent and Child. The primary determination in an in loco parentis analysis is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship.
9. Parent and Child: Intent. The assumption of the parental relationship is largely a question of fact which should not lightly or hastily be inferred.
10. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
Tyler C. Block and Elizabeth Stuht Borchers, of Marks, Clare & Richards, Omaha, for appellant.Angela Dunne Tiritilli and Susan A. Koenig, Omaha, of Koenig & Tiritilli, P.C., L.L.O., for appellee.Kelle Westland, of Raynor, Rensch & Pfeiffer, Omaha, for amicus curiae National Center for Lesbian Rights.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.
Appellant, Teri A. Latham, and appellee, Susan Rae Schwerdtfeger, were in a relationship from 1985 until 2006. After discussing having a child, Schwerdtfeger became pregnant by in vitro fertilization. In January 2001, Schwerdtfeger gave birth to P.S. Latham, Schwerdtfeger, and the minor child lived together from 2001 until 2006, when the parties separated and Latham moved out of the home. Latham continued to have visitation with P.S. until 2009. Visitation was thereafter reduced for reasons in dispute.
After visitation stopped, Latham brought an action in the district court for Douglas County seeking custody and visitation. Latham alleged that she had standing based on the doctrine of in loco parentis. Schwerdtfeger moved for summary judgment. In its order of dismissal filed July 2, 2010, the district court concluded that “the in loco parentis doctrine does not apply” and dismissed the case with prejudice. Latham appeals. We conclude that the district court erred when it concluded that the doctrine of in loco parentis did not apply to these facts. We further determine based on essentially undisputed facts that Latham has standing to seek custody and visitation of P.S. and that there are genuine issues of material fact whether Latham should be granted custody and/or visitation of P.S. We reverse the order granting summary judgment in favor of Schwerdtfeger and the order dismissing Latham's complaint, and we remand the cause for further proceedings.
Latham and Schwerdtfeger met in college and moved in together in 1985. At that time, the parties began sharing their finances. 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. The parties choose a sperm donor, and after several unsuccessful attempts at artificial insemination, Schwerdtfeger underwent in vitro fertilization, which was successful. The cost of these procedures was shared by both parties.
Both parties attended doctors' appointments, and both parties were present at the birth of P.S. The parties are not married. Latham took maternity leave to care for Schwerdtfeger and the baby.
After the birth, Latham continued her role as coparent, helping to raise the minor child and supporting him both emotionally and financially. Latham claims that P.S. identified her as “Mom” and that she would assist P.S. in getting ready for school, was involved in disciplining P.S., took P.S. to medical appointments, and helped him with his homework.
In 2005, Latham and Schwerdtfeger separated, and Latham moved out of the family home in 2006. Latham claims that even though she was not living in the home, she continued her role as coparent to the minor child. Latham states that in 2006, Schwerdtfeger was cooperative in allowing her to see P.S. and she spent one-on-one time parenting P.S. three to five times per week at her home and at Schwerdtfeger's home. Latham states that she continued to take P.S. to medical appointments and support him financially and that Schwerdtfeger and she shared finances through the summer of 2007.
Schwerdtfeger claims that after Latham moved out, Latham primarily saw P.S. on Thursday afternoons after school until dinnertime. Schwerdtfeger further states that since the closing of the combined checking account in 2007, Latham has not contributed monthly financial support for P.S., stating that Latham does not pay for the minor child's medical expenses or educational expenses. Latham does not pay child support. Both parties agree that after Latham moved out of the family home, there was no set parenting schedule agreed upon by the parties.
Latham claims that beginning in 2007, Schwerdtfeger began to arbitrarily cut down on Latham's parenting time with P.S. Latham claims that she saw P.S. only two times per week but that she continued to attend many of P.S.' activities outside of her scheduled parenting time with him, continued to support him emotionally and financially, and participated in discipline.
Schwerdtfeger stated that in 2008 and 2009, P.S. spent a total of four overnights with Latham. Schwerdtfeger stated that Latham did not attend parent-teacher conferences for P.S. in 2007, 2008, or 2009 and that she attended only one parent-teacher conference for P.S.' preschool class. Schwerdtfeger further stated that the only time Latham took P.S. to the doctor since she moved out of the residence was on one occasion in 2007, at which time she took P.S. to the doctor at Schwerdtfeger's request.
Latham stated that beginning in October 2009, Schwerdtfeger significantly restricted Latham's parenting time, and that since October 2009, Latham has been able to spend in-person parenting time with P.S. on only three occasions. Latham contends that she has continued to try to reach out to P.S. Schwerdtfeger stated that P.S. does not miss Latham and does not want to spend time with her.
On December 14, 2009, Latham filed a complaint for custody and visitation in the district court for Douglas County. On January 7, 2010, Latham filed a motion for parenting time. On February 12, Schwerdtfeger filed a motion for summary judgment. On February 26, a hearing was held on the motion for summary judgment. After the hearing, the court overruled the motion from the bench. The court awarded Latham telephonic parenting time with P.S. for 30 minutes, three times per week. The court ordered the parties to submit briefs on the issue of the in loco parentis status of Latham and scheduled an in camera interview with P.S. The court conducted the interview with P.S. on March 23.
On July 2, 2010, the court filed an order of dismissal. In its order, the district court determined that “the in loco parentis doctrine does not apply” to Latham and that “there is no genuine issue [as] to a material fact as related to” Latham's standing. The district court reversed its prior ruling, granted Schwerdtfeger's motion for summary judgment, and ordered that Latham's complaint for custody and visitation “should be dismissed with prejudice.” Latham appeals.
Latham claims, restated and summarized, the district court erred when it determined that the doctrine of in loco parentis does not apply, that there were no genuine issues of material fact, and that Latham lacked standing to seek custody and visitation of the minor child.
Child custody determinations, and visitation 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. Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008).
An appellate court will affirm a lower court's granting of summary judgment if the pleadings and admitted evidence show that there is no...
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