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STATE ON BEHALF OF WATERS V. BENTLE

Cite as 27 Neb. App. 945

State of Nebraska on behalf of Maci Jane Waters, 

a minor child, appellee, v. Mark Lawrence 

Bentley, appellant, Pamela D. Waters, 

appellee, and Debra S. Waters, 

intervenor-appellee.

___ N.W.2d ___

Filed January 14, 2020. No. A-19-099.

1. Child Custody: Appeal and Error. Child custody determinations are 

matters initially entrusted to the discretion of the trial court, and 

although reviewed de novo on the record, the trial court’s determination 

will normally be affirmed absent an abuse of discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when 

a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. ____: ____. A judicial abuse of discretion requires that the reasons or 

rulings of the trial court be clearly untenable insofar as they unfairly 

deprive a litigant of a substantial right and a just result.

4. Child Custody: Parental Rights. The parental preference doctrine provides that in the absence of a statutory provision otherwise, in a child 

custody controversy between a biological or adoptive parent and one 

who is neither a biological nor an adoptive parent of the child involved 

in the controversy, a fit biological or adoptive parent has a superior right 

to custody of the child.

5. ____: ____. The right of a parent to the custody of his or her minor 

child is not lightly to be set aside in favor of more distant relatives or 

unrelated parties, and the courts may not deprive a parent of such custody unless he or she is shown to be unfit or to have forfeited his or her 

superior right to such custody.

6. ____: ____. The parental superior right to child custody protects not only 

the parent’s right to companionship, care, custody, and management of 

Nebraska Supreme Court Online Library

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

01/21/2020 09:05 AM CST
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Cite as 27 Neb. App. 945

his or her child, but also protects the child’s reciprocal right to be raised 

and nurtured by a biological or adoptive parent.

7. Constitutional Law: Parent and Child. Establishment and continuance 

of the parent-child relationship is the most fundamental right a child 

possesses to be equated in importance with personal liberty and the most 

basic constitutional rights.

8. Child Custody: Parental Rights. The parental preference doctrine, 

by definition, is a preference, and it will be applied to a child custody 

determination unless it is shown that the lawful parent is unfit or has 

forfeited his or her superior right or the preference is negated by a demonstration that the best interests of the child lie elsewhere.

9. ____: ____. Unlike biological and adoptive parenthood, the status of in 

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

and reinstated. In loco parentis status alone does not eclipse the superior 

nature of the parental preference doctrine in custody disputes.

10. Parental Rights. Parental rights may be forfeited by substantial, continuous, and repeated neglect of a child and a failure to discharge the 

duties of parental care and protection.

11. Child Custody: Parental Rights. Allowing a third party to take custody, even for a significant period of time, is not the equivalent to forfeiting parental preference.

12. ____: ____. The courts may not properly deprive a parent of the custody 

of a minor child unless it is affirmatively shown that such parent is 

unfit to perform the duties imposed by the relationship or has forfeited 

that right.

13. Child Custody: Parental Rights: Proof. Clear and convincing evidence of substantial, continuous, and repeated neglect of a child must be 

shown in order to overcome the parent’s superior right.

14. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Adams County: Stephen 

R. Illingworth, Judge. Reversed and remanded with 

directions.

Shane M. Cochran, of Snyder, Hilliard & Cochran, L.L.O., 

for appellant.

Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.
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Cite as 27 Neb. App. 945

Bishop, Judge.

INTRODUCTION

Mark Lawrence Bentley is the biological father of Maci 

Jane Waters, a minor child, and he appeals from an order of 

the Adams County District Court granting sole legal and physical custody of Maci to Maci’s maternal grandmother, Debra 

S. Waters, subject to parenting time for Mark. Mark challenges 

the district court’s determination that a parental preference 

was inapplicable to him and that the custody award was in 

Maci’s best interests. We conclude the district court abused 

its discretion when it did not recognize Mark’s superior right 

to custody of Maci under the parental preference doctrine. We 

reverse the order of the district court and remand the cause 

with directions.

BACKGROUND

Pamela D. Waters and Mark engaged in sexual intercourse at 

least one time in the summer of 2010. Mark said he first met 

Pamela in June and saw her three times that month. They had 

one telephone conversation thereafter, which Mark indicated 

took place in October, relating to Pamela’s discovery that she 

was pregnant. The content of the exchange between Pamela and 

Mark on that call is in dispute and is discussed further in our 

analysis. According to Mark, he was in the Army at that time 

and was deployed to Iraq, leaving Nebraska that November; 

he was gone for about 1 year. The record reflects that after the 

October telephone call, Pamela and Mark did not speak to each 

other again until after this action began.

Pamela gave birth to Maci in March 2011. According to 

Pamela and Debra, who is Pamela’s adoptive mother, Maci 

lived with Pamela from birth until Maci was 3 years old. 

Debra said she babysat Maci often, starting from when Maci 

was 3 months old. Pamela decided to allow Maci to live 

with Debra full time sometime in 2014, due to issues with 

Pamela’s health (i.e., seizures) and her living environment at 

that time. Pamela admittedly had a history of marijuana use 
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and diagnoses of “ADD [and] ADHD,” “bonding attachment 

disorder,” and “grand mal seizures”; Debra said Pamela also 

had “fetal alcohol effects” that “presented with some mild 

retardation.” Debra and Pamela claimed that Debra received 

a power of attorney over Maci in 2014, but Pamela indicated 

that it expired in December 2016. Debra stated that Maci 

remained in her care after being placed with her in 2014, 

except for a few weeks in 2016 when Maci stayed with 

Pamela. In 2015, Debra twice took Maci to a licensed psychologist with an emphasis in pediatrics, Dr. Jody Lieske. Debra 

took Maci to Dr. Lieske because of an allegation against an 

unknown male related to a time when Maci was in Pamela’s 

care. Also, Debra had concerns of how “clingy” Maci had 

been to her and the “trust issues” she thought Maci exhibited. 

Debra wanted to make sure Maci was adjusting well to her 

“situation.” Sometime that year, Pamela gave birth to another 

child, who was 3 years old at the time of trial; Pamela said she 

had joint custody of that child with the child’s father, but she 

ended her relationship with him 2 years before her trial testimony in this case. Pamela said Maci had known the father of 

Pamela’s younger child “since [Maci] was born.” Pamela tried 

to be involved in Maci’s life as much as possible since Maci 

went to live with Debra. Pamela said her visits with Maci 

were supervised.

At the time of trial, Debra was 64 years old, was selfemployed, was widowed, and lived in Hastings, Nebraska, with 

her mother and Maci, who was then 7 years old. She had been 

a foster parent to seven children, two of whom had “special 

needs” and she adopted (including Pamela). Debra also had 

two sons who had children of their own. Pamela, who was 33 

years old at the time of trial, had lived in Harvard, Nebraska, 

for about 11⁄2 years and had not lived at Debra’s house for 

12 years. Debra’s other adopted child lived in Grand Island, 

Nebraska, with an “extended family host” and stayed with 

Debra every other weekend.
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Mark, who was 31 years old at the time of trial, married 

Margarita Bentley in October 2014. They lived in Miller, 

Nebraska, on a family farm with Margarita’s 8-year-old child 

from a prior dating relationship. Margarita had custody of her 

child subject to the parenting time of her child’s father, which 

was every other weekend during the school year. Testimony 

from Margarita and her child’s father indicated that Margarita 

and Mark have a positive relationship with her child’s father 

and his wife, and vice versa. Margarita believed that Mark 

was “very good” with her child, having come into her child’s 

life when she was 2 years old, and that Mark treated her child 

like she was his own child. In the past, Mark worked for 

his father on the farm, but as of June 2018, he worked for a 

power management corporation. Margarita worked at a salon in 

Kearney, Nebraska.

The record reflects that Pamela had to identify fathers for 

her children to fill out an application for what her trial counsel 

referred to only as “ADC.” On December 29, 2016, the State 

filed a complaint against Pamela and Mark to establish support on Maci’s behalf, alleging that Mark was Maci’s biological father (genetic testing showed “probability of paternity of 

ninety-nine percent or more”). The State sought determination 

of Mark as Maci’s father and an order that Pamela and Mark 

had a duty to pay support for Maci and that Pamela and/or 

Mark had to provide health insurance or pay cash medical support for Maci. Mark filed a voluntary appearance that same 

day. About a month later, Mark filed a motion in which he 

alleged that it was in Maci’s best interests that he be awarded 

temporary custody of her, subject to Pamela’s and Debra’s 

“visitation” as appropriate. That same day, Mark filed an 

answer, admitting to being Maci’s biological father. He asked 

for a determination of the same and asked for, among other 

things, child support. He also submitted a cross-complaint for 

full custody of Maci and the same or related relief also sought 

under his answer.
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Cite as 27 Neb. App. 945

In February 2017, a child support referee filed a report 

with recommendations regarding the State’s complaint. As relevant, the referee recommended an order that Mark is Maci’s 

father and was to pay $595 monthly in child support and $98 

monthly in cash medical support and that Pamela was to pay 

$50 monthly in child support, with the obligations to begin on 

March 1. On March 16, the district court adopted as its order 

the referee’s report and recommendations.

After her two sessions in 2015, Maci regularly attended 

counseling with Dr. Lieske from 2016 through 2018. Records 

from her sessions from 2015 to 2018 were accepted into evidence during trial. Mark, Margarita, and her child first met 

Maci on March 23, 2017, at Dr. Lieske’s office in Hastings. 

Debra was there too. Although there is a counseling record for 

it, Dr. Lieske said it was only a “meet and greet.” At Debra’s 

discretion, Mark had monthly visits with Maci in April, May, 

and June; Mark and Debra coordinated during each visit to 

plan Mark’s next visit.

In May 2017, Mark filed a motion for default judgment 

against Pamela and for entry of relief sought in his motion 

for temporary custody, termination of his child support obligation, and entry of a parenting plan. On June 20, there was 

a hearing on the motion for default judgment; Pamela did 

not appear. Mark testified about the delay in establishing his 

paternity. He said he had submitted to paternity testing as 

soon as he received a letter from the State in October 2016. 

Maci was residing with Debra, and Pamela’s time with Maci 

was “very limited.” Mark believed Debra wanted to “keep” 

Maci. The district court was concerned because Debra did not 

receive notice of the hearing. The court questioned whether 

Maci was ready for “this” given her age and residence with 

Debra. The court was “not comfortable” with Mark’s request 

for custody, because he “just started this in March” and 

because it “could be a very traumatic experience” for a 

6-year-old child. The court withheld a custody ruling until 

after evidence was presented about whether it was in Maci’s 
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best interests to “take her away from [Debra].” But the court 

agreed to enter a temporary parenting plan. On June 22, 2017, 

Mark was awarded parenting time with Maci on every other 

Saturday from 10 a.m. to 5 p.m., beginning July 1. Mark was 

ordered to work with Debra to increase his parenting time 

until further court order.

In September 2017, Debra filed a complaint for leave to 

intervene in the action. She alleged that she stood in loco 

parentis to Maci. She asked for an order granting her the continued care, custody, and control of Maci or, in the alternative, 

that it was in Maci’s best interests to maintain a significant and 

beneficial relationship with her. In March 2018, with Mark’s 

stipulation, Debra was appointed as the guardian of Maci in 

an action in the county court for Adams County; in a separate 

filing, the parties stipulated (1) that Debra would be allowed to 

be Maci’s guardian as long as she retained custody of Maci in 

the action in the district court and (2) that if the district court 

changed custody from Debra to Mark, Debra’s guardianship 

would terminate upon such order.

In May 2018, Mark filed a motion for 6 weeks of extended 

summer parenting time, spread out into 2-week intervals. He 

said that he had exercised the parenting time granted to him 

under the prior order. He said that in October 2017, the parties 

entered mediation and agreed to increase his parenting time 

to every other weekend from Friday at 6 p.m. to Sunday at 

3 p.m.; he claimed he had exercised that parenting time since 

that October. Mark said he had also had extended parenting 

time for 1 week over “Christmas time” in 2017. In an order 

filed in June 2018, the district court noted that the parties had 

stipulated to parenting time to the date of trial and that therefore, Mark’s motion was continued until trial. Mark later testified that preceding trial, he saw Maci for “a week to about nine 

days, off and on” over the summer of 2018.

Trial took place on July 11 and 12 and August 24, 2018. On 

July 12, the parties stipulated that Mark would have extended 

summer parenting time from July 13 through 18 and from 
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July 27 through August 5 with the regular weekend parenting time schedule to commence again on August 17; the court 

accepted the stipulation. During trial, each party offered exhibits that were received into evidence. Mark’s evidence also 

consisted of his own testimony and testimony from Margarita, 

her child’s father, two of Mark’s relatives, and Margarita’s 

coworker. Debra’s evidence also consisted of her own testimony and testimony from Pamela; Dr. Lieske, who was 

qualified as an expert witness in the field of psychology; and 

the extended family host for Debra’s other adopted child (not 

Pamela). Although Mark felt that his parenting time and relationship with Maci had greatly improved over the last year, 

Dr. Lieske opined that Maci did not have a bonded relationship with Mark but did have a bonded relationship with Debra. 

Dr. Lieske said that Mark had a “very nice interaction” with 

Maci but that Maci was a “timid child” and work needed to 

be done before there could be an established bonded relationship between Maci and Mark. Dr. Lieske did not have a set 

timeframe for when Maci “would be able to just be with” 

Mark. Dr. Lieske recommended the continued development of 

a relationship between Maci and Mark. After the parties each 

presented evidence, the district court ordered the parties to 

submit briefs and took the case under advisement.

The district court issued its order on January 8, 2019. The 

court indicated that Pamela was not considered suitable for 

custody “due to her mental and physical problems.” The court 

perceived the threshold question before it was whether custody could go to Debra rather than to a “fit parent,” Mark. 

Noting the parental preference doctrine, the court found that 

Debra stood in loco parentis to Maci. The court found that 

Mark, “although having knowledge of Pamela’s pregnancy,” 

“ignored” the possibility of a child until the State pursued him 

to establish paternity in late December 2016. The court concluded that there “should not” be a parental preference to Mark 

because of his “long absence” from Maci’s life.
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Cite as 27 Neb. App. 945

The district court proceeded to conduct a best interests 

analysis. It determined that Mark had not “forfeited” his 

parental rights by “total indifference,” but, rather, he had 

“ignor[ed]” his parental responsibilities after being put on 

notice of the pregnancy in 2010. His relationship with Maci 

had been “relatively short term” so far. Mark was “a solid 

citizen and a fit parent.” But the court said its “problem” 

with giving Mark custody “at this time” was that Maci had 

yet to bond with Mark. The court found that Debra had been 

and continued to be the constant in Maci’s life and that Dr. 

Lieske’s testimony was “compelling” regarding where Maci 

should be placed. The court noted Debra’s age and some of her 

“health issues” (e.g., she walked with assistance of a cane) but 

found that they did not lessen her ability to parent Maci. The 

district court acknowledged Debra’s testimony regarding why 

she believed it was in Maci’s best interests to be in her custody, why her relationship with Maci was “more like a parent/

child relationship,” and the “reluctance” Maci has had about 

going on some of the visits with Mark. In conclusion, “under 

a ‘best interests’ analysis,” legal and physical custody of Maci 

was awarded to Debra “as she has stood In Loco Parentis to 

[Maci], having raised her since age three . . . . Maci is bonded 

with Debra and so far not to Mark.” The court believed it 

was in Maci’s best interests that Mark receive parenting time 

to develop a bonded relationship with Maci. The court also 

noted that “circumstances could change over the years due to 

Debra’s age and health issues.”

Mark was given parenting time every other weekend from 

Friday at 4:30 p.m. to Sunday at 4:30 p.m. and on alternating 

holidays, extended parenting time during yearly fall and spring 

breaks, and parenting time for 8 weeks during the summer. He 

was also granted reasonable telephone contact with Maci during the week. Pamela was not given set parenting time, and her 

time was to be as agreed upon by the parties and only occur 

under adult supervision.
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Cite as 27 Neb. App. 945

The district court further found that there was no evidence 

that “Debra’s religion [was] detrimental to Maci.” Debra was 

permitted to raise Maci in the religion Debra chose. Mark was 

not to “criticize or sabotage” Maci’s upbringing, including her 

religion, and could not attempt to indoctrinate Maci into his 

religion. Mark was allowed to take Maci to church when she 

was in his care. Mark was ordered to continue paying child 

support as previously ordered. He was to provide medical 

insurance for Maci. Both parties were held responsible for their 

own attorney fees.

Mark appeals.

ASSIGNMENTS OF ERROR

Mark claims, restated, that the district court erred by determining the parental preference doctrine did not apply and it 

was in Maci’s best interests to remain in Debra’s care.

STANDARD OF REVIEW

[1] Child custody determinations are matters initially 

entrusted to the discretion of the trial court, and although 

reviewed de novo on the record, the trial court’s determination 

will normally be affirmed absent an abuse of discretion. Schrag 

v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).

[2,3] An abuse of discretion occurs when a trial court bases 

its decision upon reasons that are untenable or unreasonable or 

if its action is clearly against justice or conscience, reason, and 

evidence. Id. A judicial abuse of discretion requires that the 

reasons or rulings of the trial court be clearly untenable insofar 

as they unfairly deprive a litigant of a substantial right and a 

just result. Id.

ANALYSIS

Parental Preference Doctrine

[4,5] The parental preference doctrine provides that in the 

absence of a statutory provision otherwise, in a child custody 

controversy between a biological or adoptive parent and one 
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who is neither a biological nor an adoptive parent of the 

child involved in the controversy, a fit biological or adoptive 

parent has a superior right to custody of the child. Windham 

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

of a parent to the custody of his or her minor child is not 

lightly to be set aside in favor of more distant relatives or 

unrelated parties, and the courts may not deprive a parent of 

such custody unless he or she is shown to be unfit or to have 

forfeited his or her superior right to such custody. Id. The 

Nebraska Supreme Court has acknowledged the importance 

of the best interests of the child in resolving a child custody 

dispute, but a parent’s superior right to custody must be given 

its due regard, and absent its negation, a parent retains the 

right to custody over his or her child. Id. Although there 

may be instances where courts have determined that the best 

interests of the child defeated the lawful parent’s preference, 

those cases are viewed as being “exceptional.” Id. at 290, 887 

N.W.2d at 718 (providing example from Gorman v. Gorman, 

400 So. 2d 75 (Fla. App. 1981), where trial court found biological father and ex-stepmother to be fit, but awarded custody of child to ex-stepmother because child felt he never had 

father because father was often away from home, frequently 

intoxicated, and physically abused and blamed child for death 

of natural mother during childbirth).

[6-8] The parental superior right to child custody protects 

not only the parent’s right to companionship, care, custody, 

and management of his or her child, but also protects the 

child’s reciprocal right to be raised and nurtured by a biological or adoptive parent. Uhing v. Uhing, 241 Neb. 368, 

488 N.W.2d 366 (1992). Establishment and continuance of 

the parent-child relationship is the most fundamental right 

a child possesses to be equated in importance with personal 

liberty and the most basic constitutional rights. Id. The parental preference doctrine, by definition, is a preference, and it 

will be applied to a child custody determination unless it is 

shown that the lawful parent is unfit or has forfeited his or her 
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superior right or the preference is negated by a demonstration 

that the best interests of the child lie elsewhere. Windham v. 

Griffin, supra.

The Supreme Court recently provided further insight on the 

interaction of the best interests of the child standard and the 

parental preference principle. See In re Guardianship of K.R., 

304 Neb. 1, 932 N.W.2d 737 (2019). The Supreme Court cautioned that Windham v. Griffin, supra, “cannot be read to stand 

for the proposition that the parental preference principle will 

be rebutted in every case in which the nonparent might prevail 

in a pure best interests comparison.” In re Guardianship of 

K.R., 304 Neb. at 19, 932 N.W.2d at 749.

[9] Also, unlike biological and adoptive parenthood, the 

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

of being both suspended and reinstated; in loco parentis status 

alone does not eclipse the superior nature of the parental preference doctrine in custody disputes. See Windham v. Griffin, 

295 Neb. 279, 887 N.W.2d 710 (2016). See, also, Farnsworth 

v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008) (district 

court abused its discretion by focusing solely on best interests 

of children when granting custody to grandparents; district 

court should have also considered superior interests of biological father, and facts that indicated children might have more 

stability if they remained with grandparents did not overcome 

father’s superior rights).

[10-13] Parental rights may be forfeited by substantial, 

continuous, and repeated neglect of a child and a failure to 

discharge the duties of parental care and protection. Windham 

v. Griffin, supra. However, allowing a third party to take 

custody, even for a significant period of time, is not the 

equivalent to forfeiting parental preference. Id. The courts 

may not properly deprive a parent of the custody of a minor 

child unless it is affirmatively shown that such parent is unfit 

to perform the duties imposed by the relationship or has forfeited that right. Farnsworth v. Farnsworth, supra. Clear and 

convincing evidence of substantial, continuous, and repeated 
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neglect of a child must be shown in order to overcome the 

parent’s superior right. Id.

Did Mark Forfeit His Superior 

Right to Maci’s Custody?

Mark argues that the parental preference doctrine should 

have applied to him because he is fit to parent and he did 

not forfeit his superior right to custody of Maci. He contends 

his “rights to custody of [Maci] should trump any claims for 

custody” over Debra. Brief for appellant at 22. The district 

court determined that Debra “has stood In Loco Parentis 

to Maci having raised her since she was three years old.” 

Mark does not assign error to that particular finding, and he 

acknowledges that “Maci has been with Debra for the last 3 

to 4 years and has a bond with Debra.” Brief for appellant at 

32. However, it is Mark’s position that the evidence did not 

support that he was unfit, nor that he had forfeited his parental 

rights; accordingly, he claims that he “deserves to have custody of [Maci] pursuant to the parental preference doctrine.” 

Id. at 30.

Mark cites to two cases in which this court concluded there 

was no forfeiture of parental rights, namely, In re Interest 

of Eric O. & Shane O., 9 Neb. App. 676, 617 N.W.2d 824 

(2000), disapproved on other grounds, In re Interest of Lakota 

Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011), and 

Mair v. James, No. A-00-016, 2001 WL 537062 (Neb. App. 

May 22, 2001) (not designated for permanent publication). 

Mark contends that if those cases “do not rise to the level of 

forfeiture, then [this case] should not either.” Brief for appellant at 27. See, In re Interest of Eric O. & Shane O., supra 

(no forfeiture although minor children resided with third 

party for nearly 6 years, several of which were with natural 

father’s consent as evidenced by stipulation to third party’s 

guardianship over children); Mair v. James, supra (no forfeiture although minor child lived with third party for about 

7 years, father visited child only once after his paternity was 
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established and in 2 years prior to seeking custody, and father 

became more than $4,000 delinquent in child support; this 

court did not find as meaningful father’s lack of acknowledgment of paternity prior to entry of paternity decree because 

even mother was unsure who had fathered child).

Mark also points us to several cases of recognized forfeit

ure. See, Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983) 

(natural father’s second application for custody denied where, 

among other things, he removed children without authorization from Nebraska on one occasion and one licensed psychiatrist was of opinion that one child could benefit from termination of visits with father); Gray v. Hartman, 181 Neb. 590, 

150 N.W.2d 120 (1967) (father separated from mother and 

moved out of mother’s home at least 9 months before divorce 

petition filed and at least 6 months before child’s birth; father 

claimed to have attempted to exercise parenting time granted 

to him under divorce decree for first 5 years of child’s life 

but then went about 10 years without seeing child, sending 

cards or gifts, or asking about child’s well-being); Williams 

v. Williams, 161 Neb. 686, 74 N.W.2d 543 (1956) (father not 

unfit but forfeited his preferential right to the child’s custody 

given his indifference for 8 years and his willingness to allow 

others to assume parental obligations in his stead); State on 

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

231 (2003) (grandmother lived with child for 13 years and 

raised child for 111⁄2 of those years; natural father said he 

maintained relationship with child since child’s birth, was 

found to have failed to pay child support for first 9 years of 

child’s life although he knew he fathered the child, and was 

content with having grandmother raise child until paternity 

action initiated).

We agree with Mark that the present case is not analogous 

to those cited cases in which forfeiture overcame a parental 

preference, nor are the circumstances present here similar 

to those cases in which there were findings of no forfeiture 

despite arguably worse facts. However, Debra contends that 
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the “district court correctly concluded that Mark forfeited his 

superior right under the parental preference doctrine because 

he was absent from [Maci’s] life for the first six years of her 

life.” Brief for appellee at 8.

It is true that the district court was troubled by the fact that 

Mark had knowledge that Pamela was pregnant, but “ignored 

the situation and possibility of a child” until the State filed 

an action for paternity. Relying on Jeffrey B. v. Amy L., 283 

Neb. 940, 814 N.W.2d 737 (2012), and Williams v. Williams, 

supra, the district court concluded that “custody of Maci can 

be placed with Debra” and that “there should not be a parental 

preference to [Mark] for custody over [Debra] because of his 

long absence from Maci’s life.” The district court explained 

that Mark had not forfeited his parental rights by total indifference, but that he did ignore his parental responsibilities after 

being put on notice of the pregnancy in 2010. And although 

the district court determined that Mark’s absence for 6 years 

“from the life of [Maci] should result in him not receiving 

custody,” the court also determined that Mark had not “totally 

forfeited his parental rights to where he should not have contact with Maci.” Since being contacted by the State, the court 

acknowledged that Mark “has taken responsibility” and that 

Mark is “a solid citizen and a fit parent.” The court expressed 

concern, however, that “Maci has yet to bond with Mark” 

and that the “constant” in Maci’s life “has and continues to 

be [Debra].”

Keeping the parental preference legal principles set forth 

above in mind, we first note that Mark’s fitness as a parent is 

not at issue. “Debra does not dispute Mark’s parental fitness.” 

Brief for appellee at 9. Rather, the focus here is the district 

court’s conclusion that although Mark had not forfeited his 

parental rights in entirety and maintained a right to have parenting time with Maci, he had forfeited his superior right to 

have custody of her. The district court relied upon Jeffrey B. 

v. Amy L., supra, and Williams v. Williams, 161 Neb. 686, 74 

N.W.2d 543 (1956), in reaching its decision to place custody of 
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Maci with Debra. We therefore consider the circumstances of 

those cases as applied here.

Jeffrey B. v. Amy L., supra, involved a biological father’s 

attempt in 2010 to intervene and vacate a paternity decree 

entered in 2001 which had legally determined someone else 

to be the father of the child at issue. The biological father 

had engaged in a brief sexual relationship with the biological mother between March and June 1999 while he was temporarily working in Omaha, Nebraska; the biological father 

subsequently returned to St. Louis, Missouri. After the mother 

learned she was pregnant, she went to St. Louis to meet with 

the biological father, but he was out of town. The mother did 

meet with two of his coworkers, and one of them told the 

biological father that the mother might be pregnant and that 

she might be seeing someone else. The biological father never 

considered the possibility that the child could be his. After the 

child was born, the mother and child lived with a man who 

the mother and the man believed at the time was the child’s 

biological father. When that relationship ended, a petition to 

establish paternity was filed by the putative father; a paternity 

decree legally finding him to be the father was entered in 2001. 

Although the mother was initially awarded custody of the 

child, the legally determined father was subsequently awarded 

custody of the child in 2006. The mother filed a modification 

action in 2009, and at that point, she contacted the biological 

father, who agreed to a paternity test. Genetic testing confirmed the likelihood that he was the father, and in May 2010, 

he moved to intervene in the mother’s pending proceeding to 

modify the paternity decree. The district court permitted the 

intervention and set aside the paternity decree; the Supreme 

Court reversed that decision. See id.

While we acknowledge that these facts bear some similarity to the present case in terms of a brief sexual relationship 

followed by the father’s receipt of some notification about the 

mother’s pregnancy, there is, however, a key distinguishing 

legal factor. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 
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737 (2012), was not a case decided on the parental preference doctrine or best interests. Rather, it involved a paternity 

decree which had been entered almost a decade earlier and had 

legally determined another person to be the child’s father; the 

legal issue was whether intervention by the biological father 

and vacation of a prior paternity decree was appropriate under 

the circumstances presented in that case. The Supreme Court 

determined that the biological father could not intervene as a 

matter of right under Neb. Rev. Stat. § 25-328 (Reissue 2008), 

because intervention as a matter of right is allowed only 

before trial begins, not after judgment has been obtained, and 

in that case, the paternity judgment had been entered almost 

a decade earlier. See Jeffrey B. v. Amy L., supra. Further, the 

Supreme Court found that there was no statutory basis under 

Neb. Rev. Stat. § 25-2001(4) (Reissue 2008) to allow the 

biological father to intervene and seek to have the paternity 

decree vacated because the biological father did not exercise 

reasonable diligence to discover the mother was pregnant with 

his child, and he could not show that the paternity decree was 

obtained by mistake, neglect, or irregularity, nor could he 

show that there was unavoidable casualty or misfortune which 

prevented him from intervening before the paternity decree 

was entered. See Jeffrey B. v. Amy L., supra. The Supreme 

Court also concluded that there was no equitable basis to 

allow the biological father to intervene in a child custody 

modification dispute involving the biological mother and the 

legally determined father who had previously been awarded 

custody of the child and with whom the child had been living 

for approximately 7 years. In the matter before this court, no 

paternity action and decree determining someone else to be 

Maci’s father preceded the present action. No other person 

was identified as the child’s father, much less legally determined to be the child’s father as had occurred in Jeffrey B. v. 

Amy L., supra. In fact, in this case, Pamela testified that she 

was asked who Maci’s father was when she had Maci at the 

hospital and that she had responded: “I didn’t know at the 
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moment.” Maci’s birth certificate shows that Pamela did not 

list anyone as Maci’s father, and the only evidence regarding 

Mark’s knowledge of Pamela’s pregnancy is the October 2010 

telephone call, shortly after which Mark was deployed to Iraq 

for about a year.

In Williams v. Williams, 161 Neb. 686, 74 N.W.2d 543 

(1956), the biological father sought custody of his 8-year-old 

child via a habeas corpus proceeding. The child’s mother had 

died shortly after the child’s birth and the child was placed 

with his paternal grandparents. The fitness of the father was 

not at issue. Also, the father had visited the child from time 

to time and made some contributions to support the child. 

The question considered by the Supreme Court was whether 

the father forfeited his preferential right to the child’s custody given his indifference for 8 years and his willingness to 

allow others to assume parental obligations in his stead. The 

Supreme Court concluded the father had forfeited his natural 

right as a parent “to uproot and destroy the close relationship 

between the child and the grandparents which he permitted to 

come into existence with his full approval and consent.” Id. at 

690, 74 N.W.2d at 545. The court observed, “While it is true 

that a parent has a natural right to the custody of his child, the 

court is not bound as a matter of law to restore a child to a 

parent under any and all circumstances.” Id. Where a “father 

abandoned the care of his child to his parents for 8 years 

beginning from the day of its birth, with his full approval 

and consent, he has forfeited his natural right to the child’s 

custody.” Id. at 690-91, 74 N.W.2d at 545. Again, the facts 

in the present matter are quite different. Unlike the father 

in Williams v. Williams, supra, Mark did not turn over the 

responsibility for Maci’s childrearing to Debra; Mark assumed 

immediate responsibility when he became aware Maci was 

his child.

The district court relied on the cases just discussed, and it 

concluded that “there should not be a parental preference to 

[Mark] for custody over [Debra] because of his long absence 
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from Maci’s life” and that it “must therefore proceed to a best 

interests analysis to determine custody.” To conclude as it did, 

the district court necessarily was persuaded that the October 

2010 telephone conversation between Pamela and Mark was 

sufficient to put Mark on notice that Pamela could have been 

pregnant with his child and that Mark had an obligation to follow up with Pamela to determine whether she had a baby and, 

if so, whether it was Mark’s child. In our de novo review of 

the record, we cannot agree that the record affirmatively establishes that Mark forfeited his superior right to custody based 

upon his failure to follow up on the October 2010 telephone 

call. The evidence reveals the following:

Pamela and Mark had a brief sexual relationship in June 

2010, with no contact until October of that year. According 

to Mark, his telephone call with Pamela in October lasted “a 

few minutes.” He first said that the subject of the telephone 

call was the possibility that Pamela was pregnant. On crossexamination, Mark agreed that Pamela told him she was pregnant. On further questioning by the court, Mark answered that 

he could not remember Pamela’s exact wording, but he agreed 

that she left him with the impression that she was pregnant. 

Although at first Mark could not recall what he said to Pamela, 

he later agreed that he asked her if she thought the child was 

his. Mark’s counsel asked him if he got a definitive answer 

from that; Mark answered that Pamela was “very upset” and 

was crying while he was “unable to understand her” and then 

she hung up. Mark did not know whether the child was his. 

When asked if he knew if Pamela was seeing other people, 

Mark responded that his friends in Hastings said “they did see 

her with other people just in the social environment at the bar 

and such.”

Pamela testified that she had taken three pregnancy tests 

which were all positive and that she knew she was pregnant 

before she called Mark. She knew Mark as “Bentley” at that 

time and indicated she was not sure of his first name back 

then. She said that during the telephone call, she told Mark she 
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was pregnant; she “pretty much let him know that[,] because 

he was the last one [she] was with.” Pamela recalled that Mark 

was confused and that at one point he told her he “didn’t want 

it.” She said Mark had told her he was being deployed so that 

she would not be able to contact him. Pamela said she saw 

Mark after that at a bar on a “very, very crowded night” and 

made eye contact with him for a “brief second” and then tried 

but could not find him. Mark denied or did not recall running into Pamela at a bar after seeing her in June 2010. Maci 

was born in March 2011. Pamela testified that she was asked 

who Maci’s father was when she had Maci at the hospital 

and that she had responded: “I didn’t know at the moment.” 

Maci’s birth certificate shows that Pamela did not list anyone 

as Maci’s father. Pamela admitted that she did not identify a 

father on Maci’s birth certificate because she did not know 

Mark’s first name or thought it was “Ryan” and because she 

wanted to be sure that the name was correct and about the 

identity of the father.

As stated previously, Mark was deployed to Iraq and left 

Nebraska about a month after his telephone call with Pamela 

in October 2010. Pamela said she tried contacting Mark one 

time after Maci’s birth but never got a response. She did not 

know if he still had the same telephone number. Following 

the telephone call in October 2010, Pamela and Mark did not 

speak to each other again until after this action began. During 

trial, Pamela agreed that when she applied at some point for 

what her counsel referred to as “ADC,” she identified Mark as 

the father of one of her children, knowing that his name was 

“Bentley” and that he was in the military. Mark claimed he first 

learned he had a child after the State contacted him to submit 

to a paternity test in October 2016.

Although the record supports the district court’s finding 

that in October 2010 Mark was made aware that Pamela was 

pregnant, the record does not show that Mark, or even Pamela, 

at that time conclusively knew that Mark was the father of 

the child. Even if Mark was “the last one [she] was with,” 
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as Pamela testified was her reason for telling Mark she was 

pregnant, that would not have necessarily ruled out other 

potential fathers. One of the reasons why Pamela did not list 

a father on Maci’s birth certificate was because she wanted 

to verify Maci’s father’s identity in general, which indicates 

her own lack of certainty as to who might be Maci’s father. 

While it would have been prudent for Mark to follow up with 

Pamela after the one telephone call they had about Pamela’s 

pregnancy, the evidence does not affirmatively show that Mark 

forfeited his right to custody. See Farnsworth v. Farnsworth, 

276 Neb. 653, 756 N.W.2d 522 (2008) (courts may not properly deprive parent of custody of minor child unless it is 

affirmatively shown that such parent is unfit to perform duties 

imposed by relationship or has forfeited that right). Even when 

considering only Pamela’s testimony, she did not know who 

the child’s father was with any degree of certainty even at 

the time Maci was born, and she made only one unsuccessful attempt after Maci’s birth in March 2011 to try to contact 

Mark, who had been deployed to Iraq for a year commencing 

the prior November. Further, the record does not clearly and 

convincingly demonstrate that Mark’s absence from the beginning of Maci’s life constituted forfeiture of his parental rights 

based upon substantial, continuous, and repeated neglect of the 

child. See id. See, also, In re Interest of Lakota Z. & Jacob H., 

282 Neb. 584, 590, 804 N.W.2d 174, 180 (2011) (parental preference principle applied in guardianship termination action; 

individual in opposition to termination of guardianship bears 

burden of proving by “clear and convincing” evidence that 

biological or adoptive parent either is unfit or has forfeited his 

or her right to custody).

The record shows that once Mark was notified about the 

possibility that Maci was his child and that a paternity test 

confirmed the same, he discharged his duties of parental care 

and protection over Maci as he was increasingly permitted. 

Mark said he was contacted by the State in October 2016, then 

submitted to a “DNA test . . . right away.” The State filed its 
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complaint in December. In filings submitted in January 2017, 

Mark admitted he was Maci’s biological father and sought 

custody of Maci. The court ordered that Mark was Maci’s 

biological father on March 16. Mark first met Maci on March 

23. With Debra’s permission, he had monthly visits with Maci 

in April, May, and June, all prior to the June hearing on his 

motion for default judgment after which the district court set 

a temporary parenting schedule for Mark. As Mark states in 

his brief, his parenting time has been “steadily increasing” 

since that time. Brief for appellant at 25. He further states he 

never missed a weekend of his parenting time, a claim that the 

record does not refute (disregarding one time in the summer 

of 2018, when Debra said Mark did not pick up Maci on a 

Friday as Mark’s work schedule was “mixed up” so he picked 

up Maci the next morning after he got off work—a night shift). 

Moreover, the child support payment history reports revealed 

that as of the trial, Mark was current on his child support and 

cash medical support obligations for Maci. Mark also showed 

that he had obtained health insurance since the action began 

and had added Maci to be covered by his health insurance in 

June 2018.

In sum, Mark is undisputedly a fit parent, and the record 

does not affirmatively reflect that he forfeited his superior 

right to custody of Maci, nor is there clear and convincing 

evidence of substantial, continuous, and repeated neglect of 

Maci necessary to overcome his parental superior right. The 

district court abused its discretion when it found otherwise 

based upon its assessment of Maci’s current best interests. 

See Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 

522 (2008) (district court abused its discretion by focusing 

solely on best interests of children when granting custody to 

grandparents; district court should have also considered superior interests of biological father, and facts that indicated children might have more stability if they remained with grandparents did not overcome father’s superior rights). While the 

district court’s best interests assessment is understandable 
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given Maci’s existing relationship with Debra, the record does 

not support that Mark forfeited his superior right to custody, 

nor is this an instance where the child’s best interests defeat 

Mark’s parental preference. There are no exceptional circumstances here which override or rebut Mark’s parental preference. See Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 

710 (2016) (instances where best interests defeat lawful parent’s preference are viewed as exceptional, such as father’s 

frequent intoxication, physical abuse, and blaming child for 

death of natural mother during childbirth). The record demonstrates that once Mark became aware of Maci’s existence, 

he immediately engaged in parenting; the district court found 

him to be “a solid citizen and a fit parent.” Even if the circumstances present in this case support the fact that Debra 

should have custody under a pure best interests comparison, 

the parental preference principle has not been rebutted, as 

discussed above. See In re Guardianship of K.R., 304 Neb. 1, 

932 N.W.2d 737 (2019) (parental preference principle will not 

be rebutted in every case in which nonparent might prevail in 

pure best interests comparison).

Accordingly, we reverse the district court’s January 8, 

2019, order and remand the cause with the following directions: Legal and physical custody should be awarded to Mark. 

Having legal custody means that Mark will have the “authority 

and responsibility for making fundamental decisions regarding 

the child’s welfare, including choices regarding education and 

health.” Neb. Rev. Stat. § 43-2922(13) (Reissue 2016). See, 

also, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 

946, 932 N.W.2d 692, 703 (2019) (legal custody gave father 

“final say on fundamental decisions regarding [child’s] welfare, such as where he attends school, his religious upbringing, 

and how his health and medical needs are met”). Regarding 

physical custody, Mark will have the “authority and responsibility regarding [Maci’s] place of residence and the exertion 

of continuous parenting time for significant periods of time.” 

§ 43-2922(20). Regarding physical custody, we are mindful of 
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the district court’s concerns that “Maci is bonded with Debra 

and so far not to Mark” and that Maci and Mark “need to work 

on the relationship so Maci knows Mark is there for her.” We 

also acknowledge the significance of the bond between Maci 

and Debra, and due consideration must be given to maintaining that relationship. Therefore, on remand, the district 

court is to develop a parenting plan and visitation schedule 

that will gradually transition Maci’s daily physical custody 

and care from primarily being with Debra to primarily being 

with Mark, but preserving appropriate grandparent visitation 

between Maci and Debra. The district court may, in its discretion, determine whether to hold further evidentiary hearings to 

obtain input from the parties or other evidence as to a reasonable transitional schedule for Maci.

[14] In light of our decision above, we need not further 

address Mark’s other assigned error concerning the district 

court’s best interests analysis. See Weatherly v. Cochran, 301 

Neb. 426, 918 N.W.2d 868 (2018) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate 

case and controversy before it).

CONCLUSION

For the reasons set forth above, we reverse the January 8, 

2019, order of the district court and remand the cause with 

directions.

Reversed and remanded with directions.