Uhing on Behalf of Jones v. Uhing

Decision Date28 August 1992
Docket NumberNo. S-91-743,S-91-743
Citation241 Neb. 368,488 N.W.2d 366
PartiesKristine A. UHING, for Herself and on Behalf of Her Minor Child, Caeli JONES, Appellant, v. Ann UHING, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Constitutional Law: Habeas Corpus. Habeas corpus is a civil remedy constitutionally available in a proceeding to challenge and test the legality of a person's detention, imprisonment, or custodial deprivation of the person's liberty.

2. Habeas Corpus: Child Custody. A habeas corpus proceeding is appropriate to test the legality of custody and best interests of a minor, when the party having physical custody of the minor has not acquired child custody under a court order or decree.

3. Habeas Corpus: Child Custody: Appeal and Error. In an appeal from a decision in a habeas corpus action involving custody of a child, an appellate court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

4. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

5. Child Custody: Parental Rights. In the absence of a statutory provision otherwise, in a child custody controversy between a biological or adoptive parent and one who is neither a biological nor an adoptive parent of the child involved in the controversy, a fit biological or adoptive parent has a superior right to custody of the child.

6. Child Custody: Parental Rights. The parental superior right to child custody protects not only [241 Neb. 369] the parent's right to the companionship, care, custody, and management of his or her child, but also protects the child's reciprocal right to be raised and nurtured by a biological or adoptive parent.

7. Child Custody: Parental Rights. A court may not, in derogation of the superior right of a biological or adoptive parent, grant child custody to one who is not a biological or adoptive parent unless the biological or adoptive parent is unfit to have child custody or has legally lost the parental superior right in a child.

8. Child Custody: Words and Phrases. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being.

9. Habeas Corpus: Child Custody: Parental Rights. In a parent's habeas corpus proceeding directed at child custody, a court may not deprive a parent of a minor's custody unless it is affirmatively shown that the parent seeking habeas corpus relief is unfit to perform the parental duties imposed by the parent-child relationship or has legally lost parental rights in the child.

10. Child Custody: Parental Rights. The fact that a stranger, that is one outside the immediate family relationship, may be able to provide greater or better financial care or assistance for a child than can a parent is an insufficient basis to deprive a parent of the right to child custody.

Connie Kearney, of Legal Aid Society, Inc., Omaha, for appellant.

S. Caporale, Omaha, for appellee.

BOSLAUGH, WHITE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Kristine Uhing, biological mother of Caeli Jones, appeals from the decision of the district court for Douglas County, which denied Kristine Uhing's petition for habeas corpus relief concerning her daughter, Caeli, who is in the custody of Ann Uhing, the child's grandmother.

HABEAS CORPUS AND CHILD CUSTODY

Habeas corpus is a civil remedy constitutionally available in a proceeding to

challenge and test the legality of a person's detention, imprisonment, or custodial deprivation of the person's liberty. See, U.S. Const. art. I, § 9; Neb. Const. art. I, § 8; In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944); Robertson v. Div. of Parole, 67 N.Y.2d 197, [241 Neb. 370] 492 N.E.2d 762, 501 N.Y.S.2d 634 (1986)

A habeas corpus proceeding is appropriate to test the legality of custody and best interests of a minor, when the party having physical custody of the minor has not acquired custody under a court order or decree. See, Shoecraft v. Catholic Social Servs. Bureau, 222 Neb. 574, 385 N.W.2d 448 (1986); Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483 (1980); In re Application of Reed, 152 Neb. 819, 43 N.W.2d 161 (1950).

STANDARD OF REVIEW

In an appeal from a decision in a habeas corpus action involving custody of a child, an appellate court's review of a trial court's judgment is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. See, L.G.P. v. Nebraska Dept. of Soc. Servs., 239 Neb. 644, 477 N.W.2d 571 (1991); Reynolds v. Green, 232 Neb. 60, 439 N.W.2d 486 (1989); Nielsen v. Nielsen, supra.

[A] judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

State v. Juhl, 234 Neb. 33, 43, 449 N.W.2d 202, 209 (1989). Accord, In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992); Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988); Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985).

FACTUAL BACKGROUND

On August 4, 1988, Caeli Jones was born to Kristine, age 21, who was married to Clifford Jones. Apparently, Kristine and Clifford were separated at the time of Caeli's birth. Because Kristine was unemployed at that time and financially unable to provide for Caeli, Kristine and Caeli moved into the residence [241 Neb. 371] of Kristine's parents. The marriage between Kristine and Clifford Jones was dissolved in August 1989.

From the moment that Kristine and Caeli moved into the Uhing residence, Ann Uhing, Caeli's grandmother, attended to the child, but generally disagreed with Kristine's methods in rearing Caeli. This disagreement and conflict eventually resulted in Kristine's exclusion from participation in child care for Caeli. Throughout the 1 1/2 years that Kristine lived with the Uhings, she had several part-time jobs; for example, she worked in telemarketing, was a motel reservationist, was employed at St. Luke's Day Care Center, and had a job with First Data Resources. From the age of 16 years, Kristine had suffered anxiety attacks for which she was taking medication to alleviate the problem. In December 1989, Kristine was discharged from her employment at First Data as the result of absenteeism on account of her illness. The differences between Ann Uhing and Kristine concerning Caeli continued and culminated with Ann Uhing's request that Kristine move out of the Uhing residence. Kristine left in January 1990 and was still unable to provide financially for Caeli. For that reason, Caeli remained with her grandparents.

In February 1990, Ann Uhing filed a petition for temporary guardianship. While Ann Uhing's petition for guardianship was pending, Kristine shared an apartment with a girl friend, Tammy Barnes, and Tammy's 3 1/2-year-old daughter, Gina. During this time Kristine attempted to maintain her relationship with Caeli and, on several occasions, asked Ann Uhing for

permission to take Caeli shopping or to the zoo and requested that Caeli be allowed to accompany Kristine on a company picnic. Ann Uhing refused to allow such outings, but permitted Kristine to visit Caeli in the Uhing home. In the summer of 1990, Kristine worked in a bar, but later in the year returned to employment with First Data, where she earned a net monthly income of $750. Kristine is a high school graduate and has no history of any arrest, use of drugs, or alcohol problem, and has no psychological or major health difficulty that restricts her activities or which might adversely affect her relationship with Caeli

Ann Uhing's petition for temporary guardianship was [241 Neb. 372] dismissed on April 5, 1991, "for lack of prosecution." On May 3, Kristine wrote to Ann Uhing and informed her that Kristine was employed and had "adequate housing" for Caeli, whom Kristine wanted to pick up from the Uhing house. When Ann Uhing refused to surrender Caeli, Kristine filed her petition for habeas corpus relief. At the time of the habeas corpus hearing on June 28, Kristine, then 24 years old, shared an apartment with a man named "John Kratina" and had made arrangements for Caeli to attend preschool in the event that she obtained custody of the child.

DISTRICT COURT'S DECISION

At the conclusion of the hearing, the district court remarked:

I am going to make a finding that it is in the best interest of Caeli that she remain with the respondent at this time.

....

I would anticipate that once the petitioner has established a little bit better track record than what she has in the past, that Caeli would probably be with her.

There is no question that a child...

To continue reading

Request your trial
50 cases
  • McDermott v. Dougherty
    • United States
    • Maryland Court of Appeals
    • 10 Marzo 2005
    ...Id. at 848-52, 580 N.W.2d at 533-34 (alterations added) (citations omitted) (emphasis added). See also Uhing v. Uhing, 241 Neb. 368, 373-74, 488 N.W.2d 366, 370-71 (1992) ("[a]lthough... the `question present in every habeas corpus case is the best interests of the child,' we cannot overloo......
  • Burak v. Burak
    • United States
    • Court of Special Appeals of Maryland
    • 29 Agosto 2017
  • Hamit v. Hamit
    • United States
    • Nebraska Supreme Court
    • 2 Junio 2006
    ...fundamental rights of parents in Nebraska cases. See, In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004); Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992). After reviewing its history of recognizing a parent's right to make decisions concerning the care, custody, and control......
  • G.Y. v. S.W. (In re L.Y.)
    • United States
    • Iowa Supreme Court
    • 14 Enero 2022
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT