- 800 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

Jennifer T., appellant, v. 

Lindsay P., appellee.

___ N.W.2d ___

Filed February 2, 2018. No. S-17-107.

1. 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.

2. Parent and Child: Standing: Words and Phrases. In loco parentis is a 

common-law doctrine that gives standing to a nonparent to exercise the 

rights of a natural parent when the evidence shows that the nonparent’s 

exercise of such rights is in the child’s best interests.

3. Parent and Child. In order to stand in loco parentis, one must assume 

all obligations incident to the parental relationship.

4. Parent and Child: Parental Rights. A person in loco parentis generally 

holds the same rights as a lawful parent. However, in loco parentis status 

does not, by itself, eclipse the superior nature of the parental preference 

accorded to biological or adoptive parentage.

5. Actions: Parent and Child: Standing. 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.

6. Parent and Child. In loco parentis status is, unlike biological and adoptive parentage, transitory.

7. Actions: Parent and Child. A litigant cannot seek a declaration of permanent parental status under the in loco parentis doctrine.

8. Parent and Child. Once the person alleged to be in loco parentis no 

longer discharges all duties incident to the parental relationship, the 

person is no longer in loco parentis.

9. ____. Termination of the in loco parentis relationship also terminates the 

corresponding rights and responsibilities afforded thereby.

10. Courts: Jurisdiction: Adoption: Minors. An order of consent under 

Neb. Rev. Stat. § 43-104(1)(b) (Reissue 2016) granted by the district 

Nebraska Supreme Court Online Library

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

04/13/2018 01:14 AM CDT
- 801 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

court does nothing more than permit the county court, as the tribunal 

having exclusive original jurisdiction over adoption matters, to entertain 

such proceedings.

11. Adoption. An order of consent under Neb. Rev. Stat. § 43-104(1)(b) 

(Reissue 2016) is not a determination of the child’s best interests or any 

other issue pertaining to adoption.

12. Courts: Jurisdiction: Adoption. The consent under Neb. Rev. Stat. 

§ 43-104(1)(b) (Reissue 2016) can be understood as a limited deferral to 

the adoption court of the first court’s jurisdictional priority.

13. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, 

when different state courts have concurrent original jurisdiction over the 

same subject matter, the court whose power is first invoked by proper 

proceedings acquires jurisdiction to the exclusion of all tribunals to 

adjudicate the rights of the parties.

14. ____: ____. Two courts cannot possess at the same time the power 

to make a final determination of the same controversy between the 

same parties.

15. ____: ____. A court with jurisdictional priority can choose to relinquish it.

16. ____: ____. Jurisdictional priority is a matter of judicial administration 

and comity. It is not to protect the rights of the parties but the rights of 

the courts to coordinate jurisdiction to avoid conflicts, confusion, and 

delay in the administration of justice.

17. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction over an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken.

18. Final Orders: Appeal and Error. Having a substantial effect on a 

substantial right depends most fundamentally on whether the right 

could otherwise effectively be vindicated through an appeal from the 

final judgment.

19. ____: ____. Generally, an immediate appeal from an order is justified 

only if the right affected by the order would be significantly undermined 

or irrevocably lost by waiting to challenge the order in an appeal from 

the final judgment.

20. Adoption. Orders of consent under Neb. Rev. Stat. § 43-104(1)(b) 

(Reissue 2016) do not affect a substantial right, because they do not 

resolve the issue of adoption.

21. Injunction: Final Orders. Orders staying proceedings to await the termination of related proceedings in another court are usually not final.

22. ____: ____. The finality of an order granting a stay depends upon 

the practical effect and impact the stay order might have on the relief 

requested by the litigants.
- 802 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

23. Injunction: Dismissal and Nonsuit. A substantial right is affected by 

an order granting a stay if its effect is tantamount to a dismissal or to a 

permanent denial of the requested relief.

24. Final Orders: Appeal and Error. It is the effect on the appellant’s 

rights, not another’s, that justifies the immediate review of an interlocutory order.

25. Dismissal and Nonsuit: Moot Question. The mere possibility of mootness is not the functional equivalent of a dismissal or a permanent denial 

of the requested relief.

26. Injunction: Dismissal and Nonsuit. A temporary stay that merely 

preserves the status quo pending a further order is not an order that 

amounts to a dismissal of the action or that permanently denies relief to 

a party.

27. Courts: Jurisdiction. A litigant’s substantial rights are not affected by 

the mere fact that one court has determined that the interests of judicial 

administration are best served by temporarily deferring jurisdictional 

priority to another court of this state.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Appeal dismissed.

Lindsay Belmont, of Koenig Dunne, P.C., L.L.O., for 

appellant.

Desirae M. Solomon for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Funke, J.

INTRODUCTION

The former partner of a biological mother who conceived 

via in vitro fertilization brought a custody action in district 

court based on her alleged in loco parentis status to the child. 

The biological mother and her wife subsequently filed a petition in county court for stepparent adoption. The district court 

consented to the adoption and stayed the custody action pending the resolution of the adoption petition. We must determine 

whether the consent to adoption or the order staying the custody action presents a final order.
- 803 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

BACKGROUND

Lindsay P. and Jennifer T. were in a committed relationship 

from 2001 to 2012. During the course of that relationship, 

Lindsay conceived Chase T. by artificial insemination through 

an anonymous donor. Chase was born in 2010, and Jennifer 

stayed home to care for him while Lindsay worked outside 

the home.

Lindsay and Jennifer separated in 2012, but they continued to coparent Chase. They agreed to a parenting schedule 

under which Lindsay had Chase on Mondays and Tuesdays, 

Jennifer had Chase on Wednesdays and Thursdays, and they 

alternated weekend parenting time. Lindsay married Jessica P. 

in 2015.

On August 12, 2015, Jennifer filed a complaint in the district court for Douglas County for initial determination of 

custody and to establish support. The complaint, as amended, 

alleged that Jennifer has stood in loco parentis for Chase 

since his birth, assuming all rights, responsibilities, and obligations incident to a lawful parental relationship. Jennifer 

sought sole legal and physical custody of Chase, with reasonable parenting time to be awarded to Lindsay. Jennifer also 

sought child support and an order requiring both parties to 

share in medical, educational, and other expenses relating to 

Chase’s care.

Approximately 1 month after Jennifer’s custody action was 

filed, Lindsay and Jessica filed a petition for stepparent adoption in the county court for Douglas County. Lindsay filed a 

motion for the district court to consent to the stepparent adoption, under Neb. Rev. Stat. § 43-104 (Reissue 2016).

Jennifer filed a motion in county court to intervene in 

the adoption proceeding and to stay the adoption proceeding 

pending the custody action. At the same time, Jennifer filed 

a motion in the district court seeking to enjoin Lindsay from 

proceeding in the county court adoption matter.

Lindsay moved in district court for summary judgment 

or dismissal of the custody action. Rather than ruling on 
- 804 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

Lindsay’s motion, the district court stayed the custody action 

pending resolution of the adoption proceeding.

Subsequently, in county court, Jennifer was denied the right 

to intervene. The county court also overruled her motion to 

stay the adoption proceedings. Jennifer appealed the county 

court’s orders, and we reversed.

We explained in In re Adoption of Chase T.1 that the county 

court lacked jurisdiction to issue its order dismissing Jennifer’s 

complaint to intervene and overruling her motion to stay the 

adoption proceeding, because the county court had failed to 

obtain the district court’s consent to the adoption. The county 

court’s order was vacated.2

While the appeal in In re Adoption of Chase T. was pending, Jennifer moved in district court for a release of its stay. 

She alleged that per the district court’s instructions, she had 

requested to intervene in the adoption proceedings, but that the 

request was denied for lack of standing. She further alleged 

that her “in loco parentis parental relationship must be established first, before she has a right to intervene in the adoption 

action.” Jennifer also asserted that the district court had an 

obligation to retain its jurisdictional priority over the county 

court, because the custody action was filed first. The district 

court sustained the request to release the stay.

After our opinion in In re Adoption of Chase T., Lindsay 

renewed her request for the district court’s consent to the 

adoption.

Jessica eventually filed a motion to intervene in the custody 

action. Lindsay then filed a motion asking the court to reissue 

its stay of the custody action—after ruling on her motion for 

consent to adoption and Jessica’s motion to intervene.

Lindsay argued that a stay was warranted, because a decision in the adoption proceeding was required before the court 

1 In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016).

2 Id.
- 805 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

could make “an informed decision regarding all issues and 

litigants.” She claimed that a stay would avoid unneeded litigation and expense. At a hearing on the motions for consent 

to adoption, intervention, and stay, Lindsay elaborated that 

she thought the adoption proceeding should be resolved first 

in order to protect Chase’s right to be adopted, as well as to 

establish Jessica’s status vis-a-vis any visitation rights that 

might ultimately be ordered in the custody action.

Jennifer objected to the motions filed by Lindsay and 

Jessica. On the motion to intervene, Jennifer argued that any 

in loco parentis rights pertaining to Jessica were irrelevant to 

her own in loco parentis claim to custody. As for the motions 

for consent and stay, Jennifer asserted that the district court 

had jurisdictional priority over the county court. She also 

argued that a determination of her in loco parentis rights must 

be made by the district court before the adoption proceeds, 

because the county court, through its vacated order, had determined that she lacked standing. Finally, she asserted that a stay 

would cause irreparable harm to her in loco parentis right to 

parent Chase.

On January 27, 2017, the court overruled the motion by 

Jessica to intervene in the custody action, but it consented to 

the adoption proceeding. In the same order, the district court 

granted the motion to stay the custody action “until further 

order of the Court.” Jennifer appeals the January 27 order.

ASSIGNMENTS OF ERROR

Jennifer assigns that the district court erred in (1) granting 

its consent to the adoption to proceed in county court and (2) 

staying the custody proceedings in the district court.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter 

of law.3

3 In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
- 806 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

ANALYSIS

Jessica’s underlying custody action in this case derives 

from common law.4 We held in Latham v. Schwerdtfeger 5

that the former partner to the biological mother of a child 

conceived via artificial insemination had standing under the 

doctrine of in loco parentis to seek custody and court-ordered 

visitation of the child. We recognized a “‘wide spectrum of 

arrangements [have filled] the role of the traditional nuclear 

family’” and that a biological parent who “‘voluntarily created and actively fostered’” a former partner to assume the 

status of a parent cannot erase that relationship after the parties’ separation “‘simply because . . . she regretted having 

done so.’”6

[2] In loco parentis is a common-law doctrine that gives 

standing to a nonparent to exercise the rights of a natural parent when the evidence shows that the nonparent’s exercise of 

such rights is in the child’s best interests.7 This standing doctrine protects the rights of the natural parent from intrusions 

by third parties except when those third parties have a stature 

like that of a parent.8

[3-5] In order to stand in loco parentis, one must assume 

all obligations incident to the parental relationship.9 In turn, 

a person in loco parentis generally holds the same rights as 

4 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).

5 Id.

6 Id. at 130, 134, 802 N.W.2d at 74, 76.

7 See Latham v. Schwerdtfeger, supra note 4.

8 See In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 

(2013).

9 See, 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., 291 Neb. 965, 

870 N.W.2d 413 (2015); Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 

1 (2000), disapproved on other grounds, Windham v. Griffin, supra

note 4.
- 807 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

a lawful parent.10 However, in loco parentis status does not, 

by itself, eclipse the superior nature of the parental preference accorded to biological or adoptive parentage.11 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.12

[6-9] The parental preference accorded to biological or 

adoptive parentage is based in part on the fact that in loco 

parentis status is, unlike biological and adoptive parentage, 

“transitory.”13 We have held that a litigant cannot seek a declaration of permanent parental status under the in loco parentis 

doctrine.14 Once the person alleged to be in loco parentis no 

longer discharges all duties incident to the parental relationship, the person is no longer in loco parentis.15 Termination of 

the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.16

District Court’s Consent

Was Not Final Order

The district court in this case has not yet determined whether 

Jennifer has a right to custody and visitation by virtue of her 

alleged in loco parentis relationship with Chase. Instead, the 

court gave its statutory consent to the adoption proceedings 

and stayed the action. Under § 43-104(1)(b), the county court 

must have the consent of any other court with jurisdiction over 

the child’s custody before it has jurisdiction to entertain the 

merits of any issue in the adoption proceeding.17

10 See Windham v. Griffin, supra note 4.

11 See id.

12 See In re Guardianship of Brydon P., supra note 8.

13 Id. at 674, 838 N.W.2d at 272. See, also, Windham v. Griffin, supra note 4.

14 In re Guardianship of Brydon P., supra note 8.

15 In re Interest of Destiny S., supra note 9.

16 Id.

17 See In re Adoption of Chase T., supra note 1.
- 808 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

[10-12] The consent granted by the district court does nothing more than permit the county court, as the tribunal having 

exclusive original jurisdiction over adoption matters, to entertain such proceedings.18 Such consent is not a determination 

of the child’s best interests or any other issue pertaining to 

adoption.19 Indeed, because county courts have exclusive jurisdiction over adoption, we have said that a nonadoption court 

lacks authority to decide such matters.20 The consent under 

§ 43-104(1)(b) can be understood as a limited deferral to the 

adoption court of the first court’s jurisdictional priority.

[13,14] Under the doctrine of jurisdictional priority, when 

different state courts have concurrent original jurisdiction over 

the same subject matter, the court whose power is first invoked 

by proper proceedings acquires jurisdiction to the exclusion of 

all tribunals to adjudicate the rights of the parties.21 Logically, 

two courts cannot possess at the same time the power to make 

a final determination of the same controversy between the 

same parties.22

The doctrine of jurisdictional priority usually applies to two 

pending cases only when they involve the same whole issue.23

In other words, the two actions must be materially the same, 

involving substantially the same subject matter and the same 

parties.24 But this is sometimes extended to situations where 

each action composes part of the whole issue,25 and we have 

18 See Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).

19 See Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).

20 Id.

21 See, Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013); State ex 

rel. Consortium for Economic & Community Dev. for Hough Ward 7 v. 

Russo, 2017 Ohio 8133, 151 Ohio St. 3d 129, 86 N.E.3d 327 (2017).

22 See id.

23 Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).

24 See id.

25 See State ex rel. Consortium For Economic & Community Dev. For Hough 

Ward 7 v. McMonagle, 2016 Ohio 4704, 68 N.E.3d 125 (2016).
- 809 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

applied this broader concept of jurisdictional priority to matters of continuing jurisdiction of child custody.26 We have indicated that the first court with jurisdiction over a child’s custody 

has priority over a subsequent court with jurisdiction over the 

child’s custody, even if the subject matter of the proceedings is 

not otherwise the same.27

[15,16] A court with jurisdictional priority can choose to 

relinquish it.28 In Charleen J. v. Blake O.,

29 we explained that 

we have sometimes referred to the second court as lacking 

jurisdiction, but this is wrong. “We mean that a subsequent 

court that decides a case already pending in another court with 

concurrent subject matter jurisdiction errs in the exercise of 

its jurisdiction.”30 Jurisdictional priority is a matter of judicial 

administration and comity.31 It is not to protect the rights of the 

parties but the rights of the courts to coordinate jurisdiction to 

avoid conflicts, confusion, and delay in the administration of 

justice.32 The consent provision of § 43-104(1)(b) contemplates 

that another court has jurisdictional priority over the custody of 

the child, and it contemplates that only with the other court’s 

consent will the adoption be allowed to proceed.

Jennifer argues in this appeal that she has been prejudiced 

by the district court’s deferral of its jurisdictional priority to 

the county court. She argues that without a prior determination 

in the custody action of her in loco parentis status, the county 

court may deny her standing to intervene in the adoption proceeding. Further, she argues that if the county court grants the 

adoption, her custody action will be moot; she assumes this 

26 See Charleen J. v. Blake O., supra note 23 (and cases cited therein).

27 See Charleen J. v. Blake O., supra note 23.

28 Id.

29 See id.

30 Id. at 463, 855 N.W.2d at 595 (emphasis in original).

31 Charleen J. v. Blake O., supra note 23.

32 See id.
- 810 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

because she assumes that three people cannot have joint legal 

custody over a child.

[17] But before reaching the merits of the district court’s 

decision, we must determine if we have appellate jurisdiction. For an appellate court to acquire jurisdiction over an 

appeal, there must be a final order or final judgment entered 

by the court from which the appeal is taken.33 The January 27, 

2017, order did not dismiss the custody action or make a final 

determination of its merits; thus, it was not a final judgment.34

The question, therefore, is whether we are presented with a 

final order.

Jennifer asserts that both aspects of the January 27, 2017, 

order, the consent and the stay, affected a substantial right and 

were made in a special proceeding. Neb. Rev. Stat. § 25-1902 

(Reissue 2016) provides that “an order affecting a substantial 

right made in a special proceeding . . . is a final order.”

We have held that a substantial right is an essential legal 

right, not a mere technical right.35 It is a right of “substance.” 

It is not enough that the right itself be substantial; the effect of 

the order on that right must also be substantial.36

We have said that an order affects a substantial right if it 

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 he or she is appealing. We have also said 

that whether the effect of an order is substantial depends upon 

whether it affects with finality the rights of the parties in the 

subject matter.37

[18,19] Having a substantial effect on a substantial right 

depends most fundamentally on whether the right could otherwise effectively be vindicated through an appeal from the 

33 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

34 See id.

35 Id.

36 Id.

37 Id.
- 811 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

final judgment.38 Generally, an immediate appeal from an 

order is justified only if the right affected by the order would 

be significantly undermined or irrevocably lost by waiting to 

challenge the order in an appeal from the final judgment.39

In several cases, we have held that orders involving consent 

to adoption are not final orders, because they do not affect a 

substantial right.40 In Klein v. Klein,

41 we held that a district 

court’s order of consent under § 43-104(1)(b) was not a final 

order, even if the consent was the last act the court would take 

in relation to the child. In In re Adoption of Krystal P. & Kile 

P.,

42 we held that the county court’s order finding that consent 

was not required from the then Department of Social Services 

was not final. Finally, in In re Adoption of Madysen S. et 

al.,

43 we held that the county court’s determination that due to 

abandonment, a father’s consent was not required, was not a 

final order.

[20] We concluded in these cases that the orders did not 

affect a substantial right, because they did not resolve the 

issue of adoption.44 Despite the orders, the county court could 

ultimately decide to deny the petition for adoption—at which 

point, the complaining party’s substantial rights would never 

be affected.45 And, if instead the adoption were permitted, then 

the rights at issue could be effectively vindicated in an appeal 

from the final judgment of adoption.46

38 Id.

39 Id.

40 See, In re Adoption of Krystal P. & Kile P., 248 Neb. 907, 540 N.W.2d 312 

(1995); Klein v. Klein, supra note 18.

41 Klein v. Klein, supra note 18.

42 In re Adoption of Krystal P. & Kile P., supra note 40.

43 In re Adoption of Madysen S. et al., supra note 33.

44 See Klein v. Klein, supra note 18.

45 See In re Adoption of Madysen S. et al., supra note 33.

46 See id.
- 812 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

We see no reason to diverge from this precedent here. It 

is true that in these cases concerning the immediate appealability of consent-related orders, the complaining parties were 

allowed to participate in the adoption proceedings. Indeed, in 

In re Adoption of Madysen S. et al., we emphasized the father’s 

continued ability to participate in the best interests hearing in 

the adoption proceeding when we concluded that the order of 

abandonment and substitute consent did not affect the father’s 

substantial rights.

We understand that it is precisely Jennifer’s ability to intervene in the adoption proceedings that she argues is one of the 

substantial rights at issue. But Jennifer presents no argument 

that the district court’s consent represented a rejection of the 

in loco parentis status under which she claims standing in both 

the custody action and the adoption proceedings. Nor does she 

assert that a determination in the district court of her in loco 

parentis status would collaterally estop her claim to standing in 

the adoption proceeding.

While we have held under certain circumstances that an 

order denying intervention affects a substantial right,47 this is 

not an appeal from an order denying intervention. The only 

effect of the consent order is that the county court has jurisdiction to consider Jennifer’s motion to intervene and any 

other issues related to the adoption proceeding. As we have 

already discussed, the district court’s consent is not a determination of the merits of any matter under the exclusive jurisdiction of the county court.48

We conclude that the district court’s order of consent does 

not affect Jennifer’s alleged right to intervene in the adoption 

proceedings. The order of consent was not final, and we lack 

jurisdiction to address its merits. We turn next to the order 

of stay.

47 See Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017). 

Compare In re Adoption of Amea R., supra note 3.

48 See Smith v. Smith, supra note 19.
- 813 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

District Court’s Stay

Was Not Final Order

[21] Orders staying proceedings to await the termination 

of related proceedings in another court are usually not final.49

Stays are often used to regulate the court’s own proceedings or 

to accommodate the needs of parallel proceedings.50 Regularly 

allowing immediate appeals from such orders would promote 

piecemeal appeals, chaos in trial procedure, and a succession 

of appeals in the same case to secure advisory opinion to govern further actions of the trial court.51

[22,23] But the finality of an order granting a stay depends 

“‘“upon the practical effect and impact the stay order might 

have on the relief requested by the litigants.”’”52 We have held 

that a substantial right is affected by an order granting a stay if 

its effect is tantamount to a dismissal or to a permanent denial 

of the requested relief.53

We have recognized orders staying litigation to be final in 

just two instances, in Sullivan v. Storz54 and in Kremer v. Rural 

Community Ins. Co.

55

In 1952, in Sullivan v. Storz, we said that an order granting a continuance for approximately 2 years under the then 

49 In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992). See, also, 

Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000).

50 15A Charles Alan Wright et al., Federal Practice & Procedure § 3914.13 

(2001).

51 See In re Adoption of Madysen S. et al., supra note 33.

52 In re Interest of L.W., supra note 49, 241 Neb. at 97, 486 N.W.2d at 496.

53 See, Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 

N.W.2d 425 (2015); Kremer v. Rural Community Ins. Co., 280 Neb. 591, 

788 N.W.2d 538 (2010); In re Interest of L.W., supra note 49.

54 Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952). See, also, Tongue 

v. Lloyd, 92 Neb. 488, 138 N.W. 738 (1912) (adjournment for more than 

90 days, which was in violation of statutory maximum, worked dismissal 

and was therefore final).

55 Kremer v. Rural Community Ins. Co., supra note 53.
- 814 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

Soldiers’ and Sailors’ Civil Relief Act affected the plaintiff’s 

substantial right to trial without unreasonable and unnecessary delay.56 Though we did not describe it as such, other 

courts reason that certain delays may be so protracted as 

to effectively dismiss the action and put the plaintiff out 

of court.57

More recently, in Kremer v. Rural Community Ins. Co., 

we held that an order staying an action while the parties 

engaged in court-ordered arbitration was final.58 We said that 

the order diminished the party’s alleged entitlement to litigate 

in court and was tantamount to a dismissal. The substantial 

right affected was not the delay but the compulsion to arbitrate and the effective disposition of all the issues presented.59

We explained that the claimed right to litigate implicated by 

the court’s order “cannot be effectively vindicated after the 

party has been compelled to do that which it claims it is not 

required to do.”60

[24] Jennifer relies on the concept of jurisdictional priority 

in asserting that the district court’s stay of the custody proceeding affected a substantial right. But we have never held 

that a stay granted in order to defer a court’s jurisdictional 

priority to another court presents a final order. Jurisdictional 

priority is not about the rights of parties but the rights of 

the courts.61 And it is the effect on the appellant’s rights, not 

56 See Sullivan v. Storz, supra note 54. See, also, Carmicheal v. Rollins, 280 

Neb. 59, 783 N.W.2d 763 (2010).

57 See, King v. Cessna Aircraft Co., 505 F.3d 1160 (11th Cir. 2007); 

Dependable Highway Exp. v. Navigators Ins. Co., 498 F.3d 1059 (9th Cir. 

2007); 767 Third Ave. v. Consulate General of Yugoslavia, 218 F.3d 152 

(2d Cir. 2000); American Mfrs. Mut. Ins. v. Edward D. Stone, Jr., 743 F.2d 

1519 (11th Cir. 1984).

58 Kremer v. Rural Community Ins. Co., supra note 53.

59 See id.

60 Id. at 602, 788 N.W.2d at 549.

61 See Charleen J. v. Blake O., supra note 23.
- 815 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

another’s, that justifies the immediate review of an interlocutory order.62

There is some federal authority holding that a stay is 

appealable if its practical effect is to permanently surrender 

federal jurisdiction over the suit to a state court’s judgment 

by virtue of the res judicata effect of the other judgment 

precluding any further substantive decision in the federal 

court.63 We can find no similar authority pertaining to the 

surrender of jurisdiction from one court to another within the 

same state.

[25] Regardless, the custody and the adoption proceedings concerning Chase do not have an identity of issues that 

would unavoidably result in precluding further substantive 

decisions by the district court. As Jennifer describes her argument, the custody action would be moot only if the county 

court approved the stepparent adoption. She concedes that 

her custody action would be unaffected if the county court 

does not grant the adoption. Without deciding the merits of 

Jennifer’s underlying mootness assumption, we hold that the 

mere possibility of mootness is not the functional equivalent of a dismissal or a permanent denial of the requested 

relief.

[26] Furthermore, we note that the district court’s order did 

not stay the custody action pending resolution of the adoption proceedings. Instead, the action was stayed merely until 

further order of the court. Presumably, the district court will 

monitor the adoption proceedings and will revisit and reassess 

the stay as it sees fit. We have held that a temporary stay that 

“merely preserves the status quo pending a further order is not 

62 See In re Adoption of Amea R., supra note 3.

63 See, Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S. 

Ct. 927, 74 L. Ed. 2d 765 (1983); In re Urohealth Systems, Inc., 252 F.3d 

504 (1st Cir. 2001); Spring City Corp. v. American Bldgs. Co., 193 F.3d 

165 (3d Cir. 1999); Granite State Ins. Co. v. Tandy Corp., 986 F.2d 94 (5th 

Cir. 1992).
- 816 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

an order that amounts to a dismissal of the action or that permanently denies relief to a party.”64

This appeal is distinguishable from Jesse B. v. Tylee H.65

Jesse B. presented an appeal from the final judgment dismissing a habeas and declaratory judgment action challenging the 

legality of the proposed adoption that was pending when the 

action commenced. Habeas corpus is an appropriate remedy 

for a claim that a child is being illegally detained by the county 

court for adoption.66 Despite this, the district court in Jesse B.

stayed the habeas and declaratory judgment action until the 

adoption proceeding concluded. And, after the adoption was 

approved, the district court dismissed the habeas and declaratory judgment action on the ground that it could no longer 

exercise jurisdiction.

On appeal, we reversed the dismissal. We disagreed with any 

contention that the habeas and declaratory judgment action, 

inasmuch as it challenged the constitutionality of the certain 

adoption consent statutes, was moot. We also opined that the 

district court, as the first court to exercise jurisdiction over the 

claims in the habeas proceeding, was required to retain it to the 

exclusion of the county court.

But the present custody action, unlike the action in Jesse B., 

does not challenge the legality of the county court’s exercise 

of jurisdiction over the child to be adopted. Furthermore, Jesse 

B. did not present an immediate appeal from an interlocutory 

order. It is thus inapposite to the question before us of whether 

the stay presents a final order.

[27] We conclude that, without more, a litigant’s substantial rights are not affected by the mere fact that one court has 

determined that the interests of judicial administration are 

64 Shasta Linen Supply v. Applied Underwriters, supra note 53, 290 Neb. at 

648, 861 N.W.2d at 431.

65 Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).

66 See id.
- 817 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

best served by temporarily deferring jurisdictional priority to 

another court of this state. We hold this to be true even if the 

issues presented to the court with jurisdictional priority might

be rendered moot by the time the stay is lifted.

As with the order of consent, Jennifer asserts that her 

right to intervene was affected by the deferral of jurisdictional priority reflected through the stay. She reasons that 

the absence of a prior determination by the district court of 

her in loco parentis status might serve as grounds for the 

county court to deny her motion to intervene in the adoption 

proceedings.

Jennifer presents no legal argument, however, that a prior 

determination of her in loco parentis status by the district court 

would be required for her to intervene in the adoption proceeding. Such an argument would run contrary to the transitory 

nature of in loco parentis status.

Neither does Jennifer argue that the county court lacks 

jurisdiction to determine her in loco parentis status when considering her motion to intervene. As stated, in loco parentis is 

a concept of standing. Standing ordinarily is determined in the 

proceeding into which the party wishes to intervene.

Finally, Jennifer does not explain how her alleged right to 

intervene in the adoption proceedings cannot be effectively 

vindicated through an appeal in that proceeding. If the right 

allegedly affected is the right to intervene in another proceeding, then it is more apt to consider whether it can be effectively 

vindicated in an appeal in that proceeding rather than in the 

action before us.

Because the district court’s order does not determine the 

merits of any issue pertaining to Jennifer’s ability to intervene 

in the adoption proceedings, Jennifer should seek redress of 

this right in the adoption proceeding—if indeed the county 

court again denies her motion. The speculative effect of the 

district court’s stay upon Jennifer’s right to intervene in the 

adoption proceeding in county court does not rise to the level 
- 818 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

JENNIFER T. v. LINDSAY P.

Cite as 298 Neb. 800

of “affecting a substantial right”67 for purposes of a final 

order analysis.

CONCLUSION

Neither the order granting consent to adoption nor the order 

staying the custody proceedings pending further order of the 

court present a final, appealable order. Accordingly, we dismiss Jennifer’s appeal for lack of jurisdiction.

 Appeal dismissed.

Wright, J., not participating.

67 See § 25-1902.