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NOLAND V. YOS

Cite as 315 Neb. 568

Brian M. Noland, appellant, 

v. Erin N. Yost, appellee.

___ N.W.2d ___

Filed December 15, 2023. No. S-22-254.

1. Appeal and Error. When assignments of error are presented in the 

argument section of an appellate brief, rather than a designated assignments of error section, an appellate court may proceed as though the 

party failed to file a brief (providing no review at all) or, alternatively, 

may examine the proceedings for plain error.

2. Jurisdiction: Appeal and Error. A jurisdictional question that does not 

involve a factual dispute is determined by an appellate court as a matter 

of law.

3. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

4. Appeal and Error. Plain error is error plainly evident from the record 

and of such a nature that to leave it uncorrected would result in damage 

to the integrity, reputation, or fairness of the judicial process.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

6. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

7. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to the appellant prior to the order 

from which the appeal is taken.

8. Final Orders. It is not enough that the right itself be substantial; the 

effect of the order on that right must also be substantial.

9. Final Orders: Appeal and Error. Whether the effect of an order is 

substantial depends on whether it affects with finality the rights of the 

parties in the subject matter.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/15/2023 09:07 AM CST
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10. ____: ____. An order affects a substantial right when the right would 

be significantly undermined or irrevocably lost by postponing appellate review.

11. ____: ____. To be appealable, an interlocutory order must satisfy 

the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum. 

Supp. 2022) and, where applicable, Neb. Rev. Stat. § 25-1315(1) 

(Reissue 2016).

12. 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.

13. Parent and Child: Intent: Proof. The assumption of the relationship of 

in loco parentis is a question of intention, which may be shown by the 

acts and declarations of the person alleged to stand in that relationship.

14. Parent and Child. The primary consideration in an in loco parentis 

analysis is whether the person seeking in loco parentis status assumed 

the obligations incident to a parental relationship. These obligations 

include providing support for the child and providing day-to-day care 

for the child.

15. Parent and Child: Standing: Words and Phrases. The doctrine of in 

loco parentis is a common-law doctrine that gives standing to a nonparent to exercise the rights of a natural or adoptive parent when the 

evidence shows the nonparent’s exercise of such rights is in the child’s 

best interests.

16. Parent and Child. In loco parentis status is not equivalent to status as a 

parent and does not entitle a person to all the same rights a legal parent 

would enjoy.

17. ____. Unlike biological and adoptive parenthood, the status of in loco 

parentis is temporary, flexible, and capable of being both suspended 

and reinstated.

18. ____. Under the common law, the in loco parentis relationship may 

be abrogated at will either by the party standing in loco parentis or by 

the child.

19. ____. Once a person alleged to be in loco parentis stops assuming 

the obligations incident to the parental relationship, the person no 

longer stands in loco parentis. Termination of the in loco parentis relationship also terminates the corresponding rights and responsibilities 

afforded thereby.

20. Parental Rights. Natural parents have a fundamental right to make 

decisions concerning the care, custody, and control of their children.
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21. Parent and Child: Child Custody. When the custody decision of a fit 

natural parent is subject to judicial review, the court must accord at least 

some special weight to the parent’s own determination.

22. Constitutional Law: Parental Rights: Child Custody. Because natural and adoptive parents have a fundamental right to make decisions 

concerning the care, custody, and control of their minor children, which 

is constitutionally protected, custody disputes between a natural or 

adoptive parent and a nonparent are governed by the parental preference doctrine.

23. Parent and Child: Child Custody: Presumptions: Proof. The parental 

preference doctrine establishes a rebuttable presumption that the best 

interests of a minor child are served by placing custody of the child with 

his or her parent and, absent proof that a parent is unfit or has forfeited 

the right to custody, a parent may not ordinarily be deprived of the custody of a minor child. It may be possible to overcome the parental preference doctrine by showing the best interests of the child lie elsewhere, 

but such circumstances must be exceptional. In order for exceptional 

circumstances to negate the parental preference doctrine, there must be 

proof of serious physical or psychological harm to the child or a substantial likelihood of such harm.

24. Parent and Child: Child Custody. The parental preference doctrine 

applies in custody disputes between a natural or adoptive parent and one 

who stands in loco parentis.

25. Divorce: Parent and Child. When a stepparent divorces a child’s biological or adoptive parent, he or she is no longer that child’s stepparent.

26. Divorce: Jurisdiction: Visitation: Proof. In a divorce proceeding, the 

court has jurisdiction to allow stepparent visitation when the stepparent 

proves that an in loco parentis relationship was established with a stepchild during the marriage and visitation is in the child’s best interests.

27. Parent and Child. It is a stepparent’s desire to remain in an in loco 

parentis relationship with his or her spouse’s child that gives rise to the 

rights and corresponding responsibilities usually reserved for natural or 

adoptive parents.

28. ____. Parental preference principles do not insulate parental decisions 

from judicial review.

29. Parental Rights. A biological parent’s rights do not extend to erasing an 

in loco parentis relationship the parent fostered between his or her minor 

child and a former partner.

30. Parent and Child: Standing: Presumptions: Proof. It is presumed 

that a child’s best interests are served by maintaining the family’s 

privacy and autonomy, but that presumption must give way where the 

child has established strong psychological bonds with a person who, 
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although not a biological parent, has lived with the child and provided 

care, nurture, and affection, assuming in the child’s eyes a stature like 

that of a parent. Where such a relationship is shown, the child’s best 

interests require 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.

31. Parental Rights. Parental preference principles do not give natural 

parents an absolute right to terminate, at will, an established in loco 

parentis relationship.

Appeal from the District Court for Sarpy County: Nathan 

B. Cox, Judge. Reversed and remanded for further proceedings.

Ashley L. Albertsen, of Oestmann & Albertsen Law, P.C., 

L.L.O., for appellant.

No appearance by appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

In this marital dissolution, the husband sought a judicial 

determination that he stood in loco parentis to his wife’s biological child so that he could litigate issues of custody and 

parenting time with his stepchild pursuant to Hickenbottom v. 

Hickenbottom.

 1 In that case, we held that a dissolution court 

has jurisdiction to allow stepparent visitation when an in loco 

parentis relationship was established during the marriage and 

visitation with the stepparent is in the child’s best interests.

After holding an evidentiary hearing, the district court 

entered an order finding that although the husband had established an in loco parentis relationship with his stepchild during the marriage, he could not litigate issues of custody or 

1 Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991), 

disapproved on other grounds, Windham v. Griffin, 295 Neb. 279, 887 

N.W.2d 710 (2016).
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parenting time in the divorce because the wife had effectively 

terminated the in loco parentis relationship by cutting off 

contact between the child and the husband once the divorce 

was filed. The court reasoned that the wife, as a fit natural 

parent, had an absolute right based on parental preference 

principles to unilaterally terminate the in loco parentis relationship involving her child, and the court believed it was 

“without power to infringe on a biological parent’s constitutional right to raise his/her own child nor overcome the 

constitutional presumption that a fit parent acts in the best 

interest of his/her child.”

The husband filed this interlocutory appeal to challenge the 

district court’s order and, in particular, its legal conclusion that 

fit natural parents have an absolute right to unilaterally terminate an established in loco parentis relationship between their 

child and a stepparent.

For reasons we will explain, we conclude the husband 

has appealed from a final order under Neb. Rev. Stat. 

§ 25-1902(1)(b) (Cum. Supp. 2022). And although his appellate brief does not have a separate assignments of error section, we exercise our discretion to review the district court’s 

order for plain error. 2 We ultimately find plain error, and we 

therefore reverse the order and remand the cause for further 

proceedings.

I. BACKGROUND

Erin N. Yost and Brian M. Noland were married in 2016. 

No children were born during their marriage, but Yost and 

Noland both had children from prior relationships. Yost’s 

youngest daughter, A.B., is the only minor child at issue in 

this divorce. She was approximately 2 years old when the 

parties married, and she lived exclusively with Yost and 

Noland during the marriage. It is undisputed that during the 

marriage, the parties told A.B. that Noland was her father, 

and she considered him to be her father.

2 See Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2022).
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1. Complaint for Dissolution

In September 2021, Noland filed a complaint seeking to dissolve his marriage to Yost. As relevant to the instant appeal, the 

complaint alleged that Noland stood in loco parentis to A.B. 

and that he had, since 2015, assumed all obligations incident 

to a parental relationship. The complaint further alleged that 

A.B. “recognizes [Noland] as her father and does not know her 

biological father.” In addition to requesting an equitable division of the marital estate, Noland’s complaint requested that 

he be granted rights of custody, support, and parenting time 

with A.B.

Around the time Noland filed the dissolution, Yost unilaterally cut off all contact between A.B. and Noland, and Yost 

informed A.B. that Noland was not her biological father. Yost 

eventually moved with A.B. out of the marital home and has, 

since that time, refused Noland’s repeated requests for communication or parenting time with A.B.

2. Motions Seeking In Loco 

Parentis Determination

A few weeks after he filed the dissolution, Noland filed 

a motion asking the court to determine that he stood in loco 

parentis to A.B. so he could pursue temporary orders relating 

to custody, support, and parenting time with his stepdaughter. 

In response, Yost filed a motion opposing any determination 

that Noland stood in loco parentis to A.B., but her motion 

requested temporary child support from Noland in the event the 

court determined he stood in loco parentis. Yost also requested 

appointment of a guardian ad litem for A.B. on the issue 

of custody.

A hearing was set on these competing motions, but it was 

continued multiple times for reasons that are not pertinent to 

the issue on appeal. Eventually, Noland filed a motion seeking an expedited evidentiary hearing to determine his in loco 

parentis status. In support, Noland asserted that Yost had 

not been allowing him to have contact with A.B. during the 
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pendency of the dissolution and that temporary orders were 

necessary to “maintain the parent/child bond” that had been 

established during the marriage. Noland expressed concern 

that if the issue of in loco parentis was not determined on an 

expedited basis, A.B. could “lose an in loco parentis parent 

just by [the] passage of time.” The district court agreed that 

time was of the essence due to the transient nature of the in 

loco parentis relationship, and the matter was set for an expedited evidentiary hearing.

3. Evidentiary Hearing and 

District Court Order

The court expressly limited the evidentiary hearing to determining whether A.B. and Noland had established an in loco 

parentis relationship during the marriage and, if so, whether 

that relationship had been terminated postseparation. The court 

received multiple exhibits and heard testimony from 13 witnesses, including Yost and Noland. A.B. did not testify at the 

hearing, and nothing in the appellate record indicates a guardian ad litem was appointed for A.B., who was 9 years old and 

in the third grade at the time of the hearing.

In an order entered March 17, 2022, the district court 

expressly found that Noland had established an in loco parentis relationship with A.B. during the parties’ marriage. In 

support of that finding, the court pointed to evidence that 

A.B. lived exclusively with Yost and Noland during the marriage, that A.B. was told Noland was her biological father and 

believed it, that Yost gave Noland “full access and authority 

to act on behalf of the minor child” during the marriage, and 

that Noland had assumed the obligations incident to a parental 

relationship. The court also found it significant that the parties had initiated stepparent adoption proceedings involving 

A.B. within the prior year.

But after expressly finding that an in loco parentis relationship had been established during the marriage, the district 

court went on to find the relationship had been terminated 
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by Yost postseparation. The court reasoned that Yost had a 

constitutionally protected right, as A.B.’s natural parent, to 

raise her child as she deemed appropriate, and thus had the 

right to unilaterally terminate the in loco parentis relationship 

between A.B. and Noland. The court found the evidence was 

undisputed that when the dissolution was commenced, Yost 

severed all contact and interaction between A.B. and Noland. 

The court described Yost’s conduct in that regard as “less 

than savory and her credibility on many issues is nonexistent,” but it found no evidence that this conduct rendered her 

unfit. The court ultimately concluded that Yost

acted completely within her rights to take action to terminate the in loco parentis status. . . . . Therefore, the Court 

concludes that a change in status, however unartfully 

accomplished, had occurred. Specifically, [Yost] exercised her parental rights and terminated [Noland’s] in 

loco parentis status . . . . [T]he Court is without power 

to infringe on a biological parent’s constitutional right to 

raise his/her own child nor overcome the constitutional 

presumption that a fit parent acts in the best interest of 

his/her child in this circumstance.

IT IS THERFORE ORDERED, ADJUDGED, AND 

DECREED that [Noland] does not stand in loco parentis 

to the minor child at issue in this proceeding.

Presumably because the district court believed it was “without power to infringe” on Yost’s desire to terminate the in 

loco parentis relationship, the court did not address whether 

A.B. wanted to continue the in loco parentis relationship 

postdivorce or whether it would be in A.B.’s best interests to 

do so.

Noland appeals from this order. He argues the district court 

erred in applying parental preference principles to give Yost 

an absolute right to unilaterally terminate the established in 

loco parentis relationship between A.B. and Noland, and he 

contends this misapplication of Nebraska law prevented him 

from litigating issues of custody and parenting time in this 
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divorce under Hickenbottom. Noland argues we have jurisdiction over this interlocutory appeal pursuant to § 25-1902(1)(b) 

because the order was made in a special proceeding and 

affected a substantial right. Yost did not file a brief on appeal 

and is in default.

We moved the appeal to our docket on our own motion 

to address the district court’s legal conclusion that parental 

preference principles give fit biological parents an absolute 

right to unilaterally terminate an in loco parentis relationship 

established between their child and a stepparent.

II. ASSIGNMENTS OF ERROR

Noland’s brief does not contain a separate assignments of 

error section and instead uses the subheadings in the argument 

section of the brief to assert error by the trial court. Nebraska’s 

appellate court rules require that an appellant’s brief shall 

include, under the appropriate heading, a “separate, concise 

statement of each error a party contends was made by the trial 

court” and that “[e]ach assignment of error shall be separately 

numbered and paragraphed.” 3

[1] We have consistently said that when assignments of 

error are presented in the argument section of an appellate 

brief, rather than a designated assignments of error section, 

an appellate court may proceed as though the party failed to 

file a brief (providing no review at all) or, alternatively, may 

examine the proceedings for plain error. 4 In this appeal, we 

exercise our discretion to examine the district court’s order for 

plain error.

3 Id.

4 See, County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 

612 (2023); Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 

916, 958 N.W.2d 378 (2021), disapproved on other grounds, Clark v. 

Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022). Accord Neb. 

Rev. Stat. § 25-1919 (Reissue 2016) (“Court of Appeals or Supreme Court 

may at its option consider a plain error not specified in appellant’s brief”).
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III. STANDARD OF REVIEW

[2] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law. 5

[3] An appellate court independently reviews questions of 

law decided by a lower court. 6

[4] Plain error is error plainly evident from the record and 

of such a nature that to leave it uncorrected would result in 

damage to the integrity, reputation, or fairness of the judicial process. 7

IV. ANALYSIS

1. Finality of District Court Order

[5] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. 8 Noland filed this interlocutory appeal to challenge the March 2022 order concluding that he could not litigate issues of custody or parenting 

time with A.B. in this dissolution, because Yost had unilaterally terminated the in loco parentis relationship. In his brief, 

Noland argues this was a final order under § 25-1902(1)(b) 

because it was entered in a special proceeding and it affects a 

substantial right.

This court has characterized marital dissolution as a special proceeding 9 and has consistently described child custody 

5 In re Guardianship & Conservatorship of Maronica B., 314 Neb. 597, 992 

N.W.2d 457 (2023).

6 Haynes v. Nebraska Dept. of Corr. Servs., 314 Neb. 771, 993 N.W.2d 97 

(2023).

7 County of Lancaster, supra note 4.

8 Charter West Bank v. Riddle, 314 Neb. 263, 989 N.W.2d 428 (2023).

9 See Ropken v. Ropken, 169 Neb. 352, 356, 99 N.W.2d 480, 484 (1959) 

(“[a]lthough a divorce action is tried as in equity, it is a special proceeding 

provided by statute”). Accord In re Interest of R.G., 238 Neb. 405, 470 

N.W.2d 780 (1991) (including divorce in listing of special proceedings), 

disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 

N.W.2d 350 (1998).
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determinations as special proceedings. 10 We are aware that 

a legal treatise has questioned whether dissolutions should 

be characterized as special proceedings, 11 but no one challenges that characterization here, and we are not inclined to 

reexamine our precedent on special proceedings in an appeal 

we are reviewing only for plain error. Because the dissolution 

court’s March 2022 order was entered in a special proceeding, 

the jurisdictional question here turns on whether the order 

affected a substantial right.

[6-9] A “substantial right” is an essential legal right, not a 

mere technical right. 12 A substantial right is affected if an order 

affects the subject matter of the litigation, such as diminishing 

a claim or defense that was available to the appellant prior to 

the order from which the appeal is taken. 13 It is not enough 

that the right itself be substantial; the effect of the order on 

that right must also be substantial. 14 Whether the effect of an 

order is substantial depends on whether it affects with finality 

the rights of the parties in the subject matter. 15

[10] Most fundamentally, an order affects a substantial 

right when the right would be significantly undermined or 

10 See, e.g., Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020); Huskey v. 

Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014); Fitzgerald v. Fitzgerald, 

286 Neb. 96, 835 N.W.2d 44 (2013); Steven S. v. Mary S., 277 Neb. 124, 

760 N.W.2d 28 (2009); State ex rel. Reitz v. Ringer, 244 Neb. 976, 980, 

510 N.W.2d 294, 299 (1994) (“custody determinations . . . are considered 

special proceedings”), overruled on other grounds, Cross v. Perreten, 257 

Neb. 776, 600 N.W.2d 780 (1999).

11 See John P. Lenich, What’s So Special About Special Proceedings? Making 

Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 280 n.180 

(2001).

12 In re Interest of Manuel C. & Mateo S., 314 Neb. 91, 988 N.W.2d 520 

(2023), modified on denial of rehearing 314 Neb. 580, 991 N.W.2d 305.

13 Id.

14 In re Interest of K.C., 313 Neb. 385, 984 N.W.2d 277 (2023).

15 Tegra Corp. v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022).
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irrevocably lost by postponing appellate review. 16 In the context of dissolution proceedings, we have recognized:

Generally, when multiple issues are presented to the district court for simultaneous disposition . . . the court’s 

determination of fewer than all the issues presented is 

not a final order for the purpose of an appeal. This 

is because, absent unusual circumstances, postponing 

appellate review until all the issues presented . . . have 

been decided will not significantly undermine the rights 

affected by the order. 17

Similarly, we have held that dissolution orders denying temporary relief do not constitute final orders for purposes of § 25-1902, regardless of “the importance of the 

rights affected.” 18

But we see nothing temporary about the district court’s 

March 2022 order. To the contrary, the order conclusively 

determined that although Noland established an in loco parentis relationship with A.B. during the marriage, Yost unilaterally terminated that relationship postseparation and, as a 

result, Noland no longer stood in loco parentis to A.B. and 

could not litigate issues of custody or parenting time in the 

divorce. As discussed in more detail later in our opinion, we 

held in Hickenbottom 19 that when a stepparent shows that 

he or she established an in loco parentis relationship with 

a stepchild while married to the stepchild’s natural parent, 

the stepparent may pursue visitation with the stepchild in a 

subsequent divorce and the court has jurisdiction to award 

visitation, even over the natural parent’s objection, when it is 

shown to be in the best interests of the child. 20

16 Paxton v. Paxton, 314 Neb. 197, 989 N.W.2d 420 (2023).

17 Tilson v. Tilson, 299 Neb. 64, 71-72, 907 N.W.2d 31, 37 (2018).

18 Id. at 74, 907 N.W.2d at 38.

19 Hickenbottom, supra note 1.

20 Accord Cavanaugh v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 

(1992).
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Here, the March 2022 order permanently denied Nolan the 

opportunity to litigate issues of custody and visitation with 

A.B. in this divorce, and it thus affected with finality the stepparent rights this court recognized in Hickenbottom. Given the 

transitory nature of the in loco parentis relationship, 21 and the 

fact that the court’s order did not purport to leave any aspect of 

the in loco parentis determination for a later trial on the merits, we think this case presents an example of the exceedingly 

“unusual circumstance[]” 22 where postponing appellate review 

would result in significantly undermining or irrevocably losing 

the in loco parentis rights affected by the order. We therefore 

conclude the March 2022 order was a final, appealable order 

under § 25-1902(1)(b).

[11] We must also consider whether Neb. Rev. Stat. 

§ 25-1315 (Reissue 2016) is implicated on these facts, 

because it is a well-settled principle that “to be appealable, an 

order must satisfy the final order requirements of § 25-1902 

and, where implicated, § 25-1315(1).” 23 In Mann v. Mann,

 24

we explained:

By its terms, § 25-1315(1) is implicated only when a 

case presents more than one claim for relief or involves 

multiple parties, and the court enters an order which 

adjudicates fewer than all the claims or the rights and 

liabilities of fewer than all the parties. For purposes 

of determining whether a case presents more than one 

“claim for relief” under § 25-1315(1), we have said 

the term is not synonymous with “issue” or “theory of 

21 See, Jennifer T. v. Lindsay P., 298 Neb. 800, 807, 906 N.W.2d 49, 57-58 

(2018) (explaining that in loco parentis status is, unlike biological and 

adoptive parentage, “‘transitory’”); Whilde v. Whilde, 298 Neb. 473, 

486, 904 N.W.2d 695, 704 (2017) (reasoning that “‘unlike biological and 

adoptive parenthood, the status of in loco parentis is temporary, flexible, 

and capable of being both suspended and reinstated’”).

22 Tilson, supra note 17, 299 Neb. at 72, 907 N.W.2d at 37.

23 Mann v. Mann, 312 Neb. 275, 288, 978 N.W.2d 606, 616 (2022).

24 Id. at 286, 978 N.W.2d at 615.
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recovery,” but is instead the equivalent of a “cause of 

action.” Because of this construction, our cases sometimes use the phrases “claim for relief” and “cause 

of action” interchangeably when analyzing whether 

§ 25-1315 is implicated.

Mann was a dissolution modification case, and it involved

multiple claims for relief because the complaint and counterclaim to modify the decree was joined with a counterclaim for 

declaratory judgment. 25 In contrast, this dissolution involves 

multiple issues, but it presents just one claim for relief. 26 As 

such, § 25-1315 is not implicated here. We have jurisdiction 

over this appeal.

2. Plain Error Review

We turn now to the primary issue on appeal: whether the 

district court plainly erred in concluding that parental preference principles give natural parents an absolute right to unilaterally terminate an established in loco parentis relationship 

between a stepparent and stepchild, thereby preventing the 

stepparent from litigating issues of custody or parenting time 

in a divorce.

To examine this issue, we first review the common-law principles that govern in loco parentis relationships in Nebraska. 

We next review our cases recognizing and applying parental 

preference principles in custody disputes between parents and 

nonparents. Then, we review our cases applying both these 

principles in the context of a stepparent who seeks custody 

and parenting time with a stepchild in a divorce proceeding. 

25 Mann, supra note 23.

26 See, Quesinberry v. Quesinberry, 2021 Ohio 4680, 185 N.E.3d 1136 

(2021) (dissolution of marriage presents single claim for relief); Cochran 

v. Chapman, 21 So. 3d 1244 (Ala. Civ. App. 2008) (same); In re Marriage 

of Leopando, 96 Ill. 2d 114, 449 N.E.2d 137, 70 Ill. Dec. 263 (1983) 

(petition for dissolution of marriage presents multiple issues but single 

claim for relief). Accord Neb. Rev. Stat. § 42-351 (Reissue 2016) (listing 

various issues in divorce proceedings over which court has jurisdiction).
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And finally, we analyze whether the district court plainly 

erred in concluding that a natural parent has the absolute right 

to unilaterally terminate an established in loco parentis relationship between a stepparent and his or her child.

(a) In Loco Parentis Doctrine

(i) Common-Law Principles

[12,13] The common-law doctrine of in loco parentis has 

long been recognized in Nebraska, 27 and our cases generally define the contours of the doctrine “in keeping with” 

English common law. 28 In that regard, Nebraska defines a 

person standing in loco parentis as “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.” 29

Whether one has assumed the relationship of in loco parentis is a question of intention, which may be shown by the 

acts and declarations of the person alleged to stand in that 

relationship. 30

[14] As the common-law definition of in loco parentis suggests, the primary consideration in the analysis is whether 

27 See, e.g., Austin v. Austin, 147 Neb. 109, 22 N.W.2d 560 (1946)(superseded 

by statute on other grounds as stated in In re Estate of McFayden, 235 

Neb. 214, 454 N.W.2d 676 (1990); applying common-law doctrine of in 

loco parentis to grandparents); McNish v. State, 74 Neb. 261, 104 N.W. 

186 (1905) (finding foster parent with whom minor child lived stood 

in loco parentis); Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903) 

(recognizing aunt with whom minor child resided stood in loco parentis).

28 Austin, supra note 27, 147 Neb. at 113, 22 N.W.2d at 563 (citing “Powys 

v. Mansfield, 14 Eng. Ch., 3 Mylne & Craig 359” for “‘proper definition’” 

of in loco parentis). See, also, Neb. Rev. Stat. § 49-101 (Reissue 2021) 

(adopting “common law of England” as Nebraska law to extent not 

inconsistent with U.S. Constitution or any law passed by Legislature).

29 Carroll v. Gould, 308 Neb. 12, 26, 952 N.W.2d 1, 11 (2020). Accord 

Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000); Austin, supra

note 27.

30 Carroll, supra note 29.
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the person seeking in loco parentis status has assumed the 

obligations incident to a parental relationship. 31 These obligations include providing support for the child and providing 

day-to-day care for the child. 32 When considering the scope 

of obligations incident to a parental relationship, we have also 

found guidance in the Parenting Act’s 33 definition of “parenting functions.” 34 In that regard, the Legislature currently 

defines “parenting functions” to mean “those aspects of the 

relationship in which a parent or person in the parenting role

makes fundamental decisions and performs fundamental functions necessary for the care and development of a child.” 35

[15,16] We have often described the doctrine of in loco 

parentis as “a common-law doctrine that gives standing to a 

nonparent to exercise the rights of a natural or adoptive parent when the evidence shows the nonparent’s exercise of such 

rights is in the child’s best interests.” 36 But our cases have also 

recognized that “in loco parentis status is not equivalent to 

31 See Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011), 

disapproved on other grounds, Windham v. Griffin, 295 Neb. 279, 887 

N.W.2d 710 (2016).

32 In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002), 

disapproved on other grounds, In re Interest of Enyce J. & Eternity M., 

291 Neb. 965, 870 N.W.2d 413 (2015).

33 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 

2022).

34 See Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000) (noting 

Parenting Act’s definitions provide guidance regarding parental rights 

and duties considered important by Legislature), disapproved on other 

grounds, Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016). 

Accord Peister v. Eurek, 30 Neb. App. 366, 375, 969 N.W.2d 134, 140 

(2021) (noting Parenting Act “offers guidance as to the obligations that the 

Legislature has deemed important to the parental relationship”).

35 § 43-2922(17) (emphasis supplied).

36 Windham v. Kroll, 307 Neb. 947, 955, 951 N.W.2d 744, 750 (2020). 

Accord, State on behalf of Tina K. v. Adam B., 307 Neb. 1, 948 N.W.2d 

182 (2020); Jennifer T., supra note 21; Whilde, supra note 21; In re 

Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).
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status as a parent and does not entitle a person to all the same 

rights that a legal parent would enjoy.” 37

(ii) Temporary Nature of 

In Loco Parentis

[17-19] Unlike biological and adoptive parenthood, the 

status of in loco parentis is temporary, flexible, and capable 

of being both suspended and reinstated. 38 Therefore, under 

our precedent, in loco parentis is not a permanent status. 39

Under the common law, the in loco parentis relationship 

may be abrogated at will either by the party standing in loco 

parentis or by the child. 40 We acknowledged this commonlaw rule in Hickenbottom,

 41 and our cases addressing the in 

loco parentis doctrine give effect to this rule by recognizing 

that once a person stops assuming the obligations incident to 

37 Whilde, supra note 21, 298 Neb. at 486, 904 N.W.2d at 704. Accord 

Windham v. Kroll, supra note 36.

38 Windham v. Griffin, supra note 31.

39 Whilde, supra note 21. Accord Jennifer T., supra note 21 (holding litigant 

cannot seek declaration of permanent in loco parentis status).

40 See, Harmon v. Dept. of Soc. & Health Serv., 134 Wash. 2d 523, 535, 

951 P.2d 770, 775 (1998) (“[a]t common law the status of one standing 

in loco parentis is voluntary and temporary and may be abrogated at will 

by either the person standing in loco parentis or by the child”); In re 

Marriage of Farrell, 67 Wash. App. 361, 835 P.2d 267 (1992) (recognizing 

common-law rule that in loco parentis relationship may be abrogated by 

either participant and holding 17-year-old child abrogated relationship by 

moving out of stepfather’s home); Chestnut v. Chestnut, 247 S.C. 332, 

334, 147 S.E.2d 269, 270 (1966) (in loco parentis status “is temporary, 

and may be abrogated at will by either the person thus standing in loco 

parentis or by the child”) (internal quotation marks omitted); State ex rel. 

Gilman v. Bacon, 249 Iowa 1233, 91 N.W.2d 395 (1958) (same). See, also, 

28 Am. Jur. Proof of Facts 2d 545 Loco Parentis Status § 8 at 559 (1981) 

(recognizing that unlike natural parents, one who stands in loco parentis 

“may terminate and abandon the burdens attendant on such status at any 

time since the status . . . is temporary and susceptible of abrogation at will 

by either the person thus standing or by the child”).

41 Hickenbottom, supra note 1.
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the parental relationship, the person no longer stands in loco 

parentis. 42 And “‘[t]ermination of the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.’” 43

(b) Parental Preference Principles

[20,21] In Troxel v. Granville,

 44 a plurality of the U.S. 

Supreme Court held “it cannot now be doubted that the Due 

Process Clause of the Fourteenth Amendment protects the 

fundamental right of parents to make decisions concerning 

the care, custody, and control of their children.” In connection with this fundamental right, Troxel recognized a legal 

“presumption that fit parents act in the best interests of their 

children” 45 and explained that when a fit parent’s decision 

regarding custody is “subject to judicial review, the court 

must accord at least some special weight to the parent’s own 

determination.” 46

[22,23] Even before Troxel, Nebraska recognized and applied 

similar parental preference principles. 47 Sometimes calling it 

the “parental preference doctrine,” we have described the principles this way:

42 See Whilde, supra note 21. See, also, Hamilton, supra note 29; Quintela v. 

Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996).

43 Whilde, supra note 21, 298 Neb. at 487, 904 N.W.2d at 704.

44 Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 

(2000). Accord State on behalf of Tina K., supra note 36.

45 Troxel, supra note 44, 530 U.S. at 68.

46 Id., 530 U.S. at 70.

47 See, Stuhr v. Stuhr, 240 Neb. 239, 246, 481 N.W.2d 212, 217 (1992) 

(Nebraska follows “parental preference principle[s]” under which courts 

“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 biological or adoptive parent is unfit or has lost parental 

rights); Nielsen v. Nielsen, 207 Neb. 141, 149, 296 N.W.2d 483, 488 

(1980) (fit natural parents have superior right to custody of minor child 

and such right may not “lightly . . . be set aside in favor of more distant 

relatives or unrelated parties”).
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[B]ecause natural and adoptive parents have a fundamental right to make decisions concerning the care, 

custody, and control of their minor children which is 

constitutionally protected, custody disputes between a 

natural or adoptive parent and a nonparent are governed 

by the parental preference doctrine. That doctrine establishes a rebuttable presumption that the best interests of 

a minor child are served by placing custody of the child 

with his or her parent and, absent proof that a parent is 

unfit or has forfeited the right to custody, a parent may 

not ordinarily be deprived of the custody of a minor 

child. In prior cases, we suggested it may be possible to 

overcome the parental preference doctrine by showing 

“the best interests of the child lie elsewhere,” but we 

described such circumstances as “exceptional.” [More 

recently,] we explained that in order for such exceptional circumstances to negate the parental preference 

doctrine, there must be proof of serious physical or psychological harm to the child or a substantial likelihood 

of such harm. 48

[24] Nebraska has long applied parental preference principles in custody disputes between a natural or adoptive parent and one who stands in loco parentis.

 49 In doing so, we 

have recognized:

[I]n loco parentis status does not, by itself, eclipse the 

superior nature of the parental preference accorded to 

biological or adoptive parentage. Rather, in the face of a 

natural parent’s objection, in loco parentis gives standing 

to litigate whether the child’s best interests are served by 

maintaining the in loco parentis relationship. 50

48 Windham v. Kroll, supra note 36, 307 Neb. at 958, 951 N.W.2d at 752.

49 See, e.g., Windham v. Kroll, supra note 36; State on behalf of Tina K.,

supra note 36; Windham v. Griffin, supra note 31; Stuhr, supra note 47; 

State on behalf of Combs v. O’Neal, 11 Neb. App. 890, 662 N.W.2d 231 

(2003).

50 Jennifer T., supra note 21, 298 Neb. at 807, 906 N.W.2d at 57.
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(c) Stepparents Who Stand 

In Loco Parentis

Nebraska appellate courts have applied the doctrine of in 

loco parentis to grandparents, 51 stepparents, 52 relatives, 53 thirdparties, 54 guardians, 55 and unmarried partners. 56 Because this 

appeal involves application of the in loco parentis doctrine 

in the context of a stepparent pursuing custody and visitation 

with a stepchild in a dissolution proceeding, we focus on that 

precedent specifically.

More than 30 years ago, in Hickenbottom,

 57 we applied 

the doctrine of in loco parentis to a stepparent who sought 

court-ordered visitation with his stepdaughter when divorcing the child’s biological mother. The district court found 

the stepfather had established an in loco parentis relationship 

with the stepchild during the marriage, and the court further 

found it was in the child’s best interests to have visitation 

with the stepfather. The court entered a decree granting the 

stepfather reasonable visitation with the stepdaughter, and on 

appeal, the mother argued the visitation award was an abuse 

of discretion.

[25] The majority opinion in Hickenbottom observed the 

general rule that “a husband who divorces the mother of [his 

stepchild] is no longer the child’s stepfather,” and it framed 

51 See, e.g., State on behalf of Daphnie F. v. Christina C., 310 Neb. 638, 967 

N.W.2d 690 (2021); Carroll, supra note 29; Austin, supra note 27.

52 Hickenbottom, supra note 1. See, also, Stuhr, supra note 47; Cavanaugh, 

supra note 20.

53 See, Windham v. Griffin, supra note 31; Martins v. School District, 101 

Neb. 258, 162 N.W. 631 (1917); McNish, supra note 27.

54 See State on behalf of Tina K., supra note 36.

55 See, State, ex rel. Bize, v. Young, 121 Neb. 619, 237 N.W. 677 (1931); 

Wirsig v. Scott, 79 Neb. 322, 112 N.W. 655 (1907).

56 See, e.g., Windham v. Kroll, supra note 36; Jennifer T., supra note 21; 

Latham, supra note 31.

57 Hickenbottom, supra note 1.
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the threshold issue on appeal as “whether the district court 

had jurisdiction to grant the husband, as the ex-stepparent, the 

right to visit his former stepdaughter.” 58 After reviewing the 

reasoning of other courts that had allowed stepparent visitation under a variety of theories, including in loco parentis, the 

majority opinion noted that in proceedings under Nebraska’s 

divorce statutes, the court has “‘jurisdiction to inquire into 

such matters, make such investigations, and render such judgments and make such orders, both temporary and final, as are 

appropriate concerning the status of the marriage, [and] the 

custody and support of minor children . . . .’” 59 Hickenbottom 

described this statute as giving dissolution courts “‘complete 

jurisdiction over the custody, support, and welfare of all minor 

children who are touched upon by the divorce proceedings and 

all related issues.’” 60

[26] Ultimately, Hickenbottom held that in a divorce proceeding, the court has jurisdiction to allow stepparent visitation when the stepparent proves that an in loco parentis relationship was established with the stepchild during the marriage 

and visitation is in the child’s best interests. Hickenbottom 

articulated two reasons for requiring a threshold showing of 

an in loco parentis relationship: (1) The existence and nature 

of the relationship is relevant to determining what sort of 

parenting arrangement would be in the child’s best interests, 61

and (2) requiring a stepparent to establish the existence of 

58 Id. at 582-83, 477 N.W.2d at 11-12.

59 Id. at 598, 477 N.W.2d at 15 (quoting § 42-351 (Reissue 1988)).

60 Id. at 590, 477 N.W.2d at 15. Accord State ex rel Storz v. Storz, 235 Neb. 

368, 455 N.W.2d 182 (1990) (holding district court where dissolution is 

properly filed has full and complete general jurisdiction over entire marital 

relationship and all related matters).

61 Hickenbottom, supra note 1, 239 Neb. at 592, 477 N.W.2d at 16-17 

(“[a]lthough the in loco parentis status is not specifically enumerated as a 

requirement in [Neb. Rev. Stat.] § 42-364 [(Reissue 1988)], it is certainly 

a relevant inquiry in considering the relationship of the children to each 

parent”).
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an in loco parentis relationship as a precondition to litigating 

issues of visitation would ensure that “the door to visitation 

rights is not open to one merely because he or she has the 

legal title of stepparent.” 62

The Hickenbottom majority conducted a de novo review 

and found the stepfather had established an in loco parentis 

relationship with his former stepdaughter during the marriage. 

It then considered the mother’s reasons for opposing the stepfather’s visitation postdivorce and found they had nothing to 

do with the child’s best interests; instead, the mother’s opposition was motivated by a desire to “punish[] the husband by 

denying him access to her daughter.” 63 The majority opinion 

concluded that in those circumstances, there was no abuse of 

discretion in awarding stepparent visitation over the objection 

of the mother.

Two justices concurred in part and in part dissented in 

Hickenbottom. These justices agreed with the majority that 

a stepparent who established an in loco parentis relationship 

with a stepchild while married to the child’s natural parent may 

be granted visitation in a dissolution when it is in the child’s 

best interests. But they thought the cause should be remanded 

for further proceedings to determine whether (1) the stepchild 

desired to continue the in loco parentis relationship, (2) the 

stepfather should be required to pay child support for the 

stepdaughter, and (3) the stepchild’s biological father should 

be given notice and an opportunity to be joined as a party to 

the dissolution. 64

One year after Hickenbottom, we decided Stuhr v. Stuhr 65

and explained how the parental preference doctrine applies in 

a custody dispute between a natural parent and a stepparent 

62 Hickenbottom, supra note 1, 239 Neb. at 592, 477 N.W.2d at 17.

63 Id. at 593, 477 N.W.2d at 17.

64 Hickenbottom, supra note 1 (Fahrnbruch, J., concurring in part, and in part 

dissenting; White, J., joins).

65 Stuhr, supra note 47.
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who established an in loco parentis relationship with a stepchild during the marriage. In Stuhr, a stipulated divorce decree 

gave the stepfather custody of his stepson subject to the natural 

mother’s reasonable visitation. Two years later, the mother 

moved to modify custody, alleging there had been a material 

change in circumstances because she had completed drug and 

alcohol treatment, had remarried, and could provide a safe and 

stable home for the minor child. After an evidentiary hearing, 

the court found both parties were fit and suitable parents. But 

reasoning that the stepfather had provided the only stable home 

the child had ever known, the court concluded that despite a 

material change in the mother’s circumstances, it was not in 

the child’s best interests to change his primary custody.

The mother appealed, arguing the court failed to properly 

consider her superior right to custody under the parental preference doctrine. We agreed. Our opinion in Stuhr acknowledged the constitutionally protected nature of the parent-child 

relationship and explained that under the parental preference doctrine

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. 66

After reviewing the record de novo, we agreed with the district court that both the mother and stepfather were fit and 

proper persons to have custody, but we held the district court 

had abused its discretion by failing to adequately consider the 

fit natural mother’s superior right to custody under parental 

preference principles. Because the evidence showed the mother 

was fit and had not forfeited her parental rights, we reversed 

the district court’s judgment and modified the decree to give 

the mother primary custody of her son, subject to the stepfather’s reasonable rights of visitation.

66 Id., 240 Neb. at 246, 481 N.W.2d at 217.
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(d) District Court Plainly Erred 

in Applying Precedent

[27] After Hickenbottom and Stuhr, Nebraska appellate 

courts generally recognize that it is a stepparent’s “desire to 

remain in an in loco parentis relationship with his [or her 

spouse’s] child that gives rise to the rights and corresponding responsibilities usually reserved for natural or adoptive 

parents.” 67 Here, it is undisputed that Noland desired to remain 

in an in loco parentis relationship with A.B. after the divorce, 

and his complaint for dissolution expressly sought custody 

and parenting time with A.B. based on that relationship. After 

the evidentiary hearing, the district court expressly found that 

Noland had established an in loco parentis relationship with 

A.B. during the marriage. Under Hickenbottom, this threshold 

showing entitled Noland to litigate issues of custody and parenting time in the divorce, although the showing alone does 

not guarantee success on the merits of those issues.

But the court did not proceed to consider whether A.B. 

wanted to continue the in loco parentis relationship or whether 

doing so was in A.B.’s best interests. Nor did the court postpone consideration of those issues until all other issues were 

tried and submitted. Instead, the court concluded that Noland 

had no right to litigate issues of custody or visitation in the 

divorce, because his in loco parentis status had been effectively terminated by Yost’s unilateral decision to cut off all 

contact between A.B. and Noland when the divorce proceedings were commenced. More specifically, the district court 

concluded as a matter of law that Nebraska’s parental preference doctrine allows natural parents to unilaterally terminate 

an established in loco parentis relationship involving their 

minor child and that courts are “without power to infringe” 

67 In re Interest of Sarah H., 21 Neb. App. 441, 452, 838 N.W.2d 389, 398 

(2013). Accord, 67A C.J.S. Parent and Child § 361 at 484-85 (2023) 

(“[t]he status of loco parentis for a stepparent generally terminates upon 

divorce, . . . unless the party standing in loco parentis to the child means 

that it should continue”).
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on that decision. This amounted to plain error for at least 

two reasons.

[28] First, under Nebraska law, parental preference principles do not insulate parental decisions from judicial review. 

In Hamit v. Hamit,

 68 we discussed the rebuttable nature of 

the presumption that fit parents act in their child’s best interests. We cited with approval the proposition that even though 

Troxel requires courts to accord at least some special weight 

to a fit parent’s decision, “‘the “special weight” requirement 

does not insulate parental wishes from judicial review.’” 69

Not only did the district court here have the authority to 

review Yost’s decision to stop all contact between A.B. and 

Noland, but Hickenbottom teaches that the reasons for Yost’s 

decision should be considered when evaluating whether it 

is in the child’s best interests to continue the in loco parentis relationship. 70

Second, nothing in our jurisprudence suggests that fit natural parents have an absolute right to unilaterally terminate, at 

will, an established in loco parentis relationship between their 

minor child and a stepparent. Nebraska has long adhered to 

the common-law doctrine of in loco parentis, including the 

rule that an in loco parentis relationship can be terminated at 

will by either the party standing in loco parentis or the child. 71

68 Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).

69 Id. at 671, 715 N.W.2d at 523 (quoting In re R.A., Jr., 121 P.3d 295 (Colo. 

App. 2005)).

70 See Hickenbottom, supra note 1 (considering reasons for natural mother’s 

objection to stepparent visitation when determining whether continuing in 

loco parentis relationship with stepfather postdivorce was in child’s best 

interests). Accord, Whilde, supra note 21, 298 Neb. at 487, 904 N.W.2d 

at 705 (noting Texas order established in loco parentis-like relationship 

between mother’s natural child and mother’s former partner and issue of 

whether such relationship “still existed was relevant . . . to the court’s 

consideration of whether or not it was in the child’s best interests for 

[former partner] to continue to have rights of custody and visitation”).

71 See cases cited supra note 44.
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As we recently recognized, our cases “have never held that 

in loco parentis status can be involuntarily extinguished from 

one day to the next, let alone from one hour to the next.” 72

Instead, our cases illustrate that when an in loco parentis relationship has been established, one who stands in loco parentis 

should be allowed to litigate whether it is in the child’s best 

interests to continue that relationship, even over the natural 

parent’s objection. 73

[29,30] In that regard, we have quoted with approval the 

proposition that “‘a biological parent’s rights do not extend to 

erasing [an in loco parentis] relationship between her partner 

and her child which she voluntarily created and actively fostered simply because after the parties’ separation she regretted 

having done so.’” 74 And we have explained:

“[W]hile 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, . . . 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.” 75

[31] Parental preference principles must be carefully considered by courts when determining custody disputes between 

72 Carroll, supra note 29, 308 Neb. at 25, 952 N.W.2d at 10.

73 See, e.g., id.; Windham v. Griffin, supra note 31; Latham, supra note 31; 

Hickenbottom, supra note 1.

74 Latham, supra note 31, 282 Neb. at 134, 802 N.W.2d at 76 (quoting T.B. 

v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001)).

75 Id. at 130, 802 N.W.2d at 74 (quoting J.A.L. v. E.P.H., 453 Pa. Super. 78, 

682 A.2d 1314 (1996)).
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a natural or adoptive parent and one who stands in loco 

parentis, 76 but these principles do not give natural parents 

an absolute right to terminate, at will, an established in loco 

parentis relationship involving their minor child. 77 The district 

court’s conclusion that Yost had an absolute right to unilaterally 

terminate the established in loco parentis relationship between 

A.B. and Noland is thus contrary to Nebraska’s settled precedent. Because this misapplication of law resulted in Noland 

being barred from litigating custody and visitation issues, it 

amounted to plain error, and leaving it uncorrected would damage the integrity and fairness of the judicial process. 78

For the sake of completeness, we acknowledge that a few 

courts in other states have issued opinions allowing natural 

parents to unilaterally terminate established in loco parentis 

relationships at will. 79 The district court here did not expressly 

cite to such cases, but to the extent it may have relied upon 

76 See, e.g., Windham v. Kroll, supra note 36; State on behalf of Tina K.,

supra note 36; Windham v. Griffin, supra note 31; Stuhr, supra note 47; 

State on behalf of Combs, supra note 49.

77 Accord Latham, supra note 31.

78 See, Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011) (court 

committed plain error by failing to give proper legal effect to paternity 

acknowledgment); Deterding v. Deterding, 18 Neb. App. 922, 797 N.W.2d 

33 (2011) (dissolution court committed plain error by failing to determine 

whether husband should be ordered to pay child support for wife’s natural 

child conceived through artificial insemination during marriage, under 

theory of in loco parentis).

79 See, e.g., Foust v. Montez-Torres, 2015 Ark. 66, at 5, 456 S.W.2d 736, 

739 (2015) (reasoning that natural parents must be permitted to terminate 

in loco parentis relationship at will “lest the law improperly prioritize 

the rights of the nonparent above that of the natural parent”); Jones v. 

Barlow, 154 P.3d 808, 814 (Utah 2007) (reasoning that if natural parents 

are not allowed to terminate in loco parentis relationships at will, those 

standing in loco parentis can “extend [their] parent-like rights against the 

legal parent’s objections for as long as [they see] fit”). But see McCrillis 

v. Hicks, 2017 Ark. App. 221, 518 S.W.3d 734 (2017) (limiting rule 

announced in Foust and holding there are still circumstances under which 

natural parents cannot unilaterally terminate in loco parentis relationship).
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similar reasoning, it is inconsistent with Nebraska’s in loco 

parentis jurisprudence.

V. CONCLUSION

The district court plainly erred in concluding that the parental preference doctrine gave Yost an unfettered right to unilaterally terminate the in loco parentis relationship between A.B. 

and Noland. We therefore reverse that portion of the March 

2022 order and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded for

further proceedings.