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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

PEISTER v. EUREK

Cite as 30 Neb. App. 366

Brian Peister, appellant, v. 

Channing Eurek, appellee.

___ N.W.2d ___

Filed November 9, 2021. No. A-21-135.

1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional 

issue does not involve a factual dispute, determination of a jurisdictional 

issue is a matter of law which requires an appellate court to reach a 

conclusion independent from the trial court’s; however, when a determination rests on factual findings, a trial court’s decision on the issue 

will be upheld unless the factual findings concerning jurisdiction are 

clearly incorrect.

2. Standing: Parent and Child: Child Custody: Visitation. A party that 

stands in loco parentis to a minor child has standing to seek custody and 

visitation regarding that child.

3. Actions: Standing. Whether a party who commences an action has 

standing presents a jurisdictional issue.

4. Standing: Pleadings: Evidence: Appeal and Error. When a challenge 

to a party’s standing is raised after the pleadings stage and the trial court 

holds an evidentiary hearing and reviews evidence outside the pleadings, 

an appellate court reviews the trial court’s factual findings under the 

clearly erroneous standard. However, the trial court’s ruling regarding 

whether the party has standing is reviewed de novo, because it presents 

a question of law.

5. Parent and Child: Words and Phrases. A person standing in loco 

parentis to a child is one who has put himself or herself in the situation 

of a lawful parent by assuming the obligations incident to the parental 

relationship, without going through the formalities necessary to a legal 

adoption, and the rights, duties, and liabilities of such person are the 

same as those of the lawful parent.

6. 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.

Nebraska Supreme Court Online Library

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

11/16/2021 08:08 AM CST
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

7. Parent and Child. The parental relationship should be found to exist 

only if the facts and circumstances show that the individual means to 

take the place of the lawful parent not only in providing support but also 

with reference to the natural parent’s office of educating and instructing 

and caring for the general welfare of the child.

8. ____. Because in loco parentis status is transitory and not permanent, it 

may be lost.

Appeal from the District Court for Adams County: Terri S. 

Harder, Judge. Affirmed.

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for 

appellant.

Jonathan Hendricks, of Dowding, Dowding, Dowding & 

Urbom, for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Channing Eurek gave birth to a daughter, Melanie J., in 

December 2012. Eurek subsequently met and became involved 

with Brian Peister in late 2013. They lived together for a 

period of time until August 2016, when their relationship 

ended. Peister continued to spend time with Melanie until 

Eurek ended his contact with Melanie in early 2020. Peister 

filed a complaint alleging to stand in loco parentis to Melanie 

and requesting parenting time. Following an evidentiary hearing, the Adams County District Court entered an order in 

which it found that Peister did not stand in loco parentis to 

Melanie and dismissed his complaint. Peister appeals from that 

order. We affirm.

BACKGROUND

Factual History

Shortly after Melanie’s birth in Wayne, Nebraska, in 

December 2012, Eurek moved with Melanie first to Loup 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

City, Nebraska, and then in October 2013, the two moved to 

Kearney, Nebraska. After the move to Kearney, Eurek met 

Peister, and the two began a relationship in late 2013. In 

August 2014, the parties moved in together at a location in 

Kearney along with Melanie and an additional roommate. At 

the end of their lease in August 2015, the parties moved to 

a second location in Kearney and continued to live together 

until August 2016. During this 2-year period of cohabitation, 

Peister fostered a relationship with Melanie, assisting in her 

care and supervision outside of daycare hours when neither 

Eurek nor her parents were able to look after Melanie during 

evening hours and on weekends. After the move, the parties’ 

relationship began to deteriorate and eventually ended during the first half of 2016. When the parties’ lease expired in 

August 2016, the parties physically separated, and Melanie 

lived with Eurek.

Following a period of minimal contact, Eurek and Peister 

eventually reconnected in late 2016 and agreed to remain 

friends. Despite the end of their romantic relationship, Peister 

offered to continue to look after Melanie when needed. Eurek 

accepted Peister’s offer, and Peister continued to watch over 

and spend time with Melanie when Eurek was working and 

could not have her parents take care of Melanie after daycare 

and on weekends. Additionally, Peister began sending checks 

to Eurek in late 2016 to help pay for Melanie’s daycare and 

other expenses.

Eurek moved to Hastings, Nebraska, in January 2018, and 

Peister also moved to Hastings a few months thereafter. Shortly 

after moving, Eurek hired a nanny to assist in caring for 

Melanie during Eurek’s 24-hour work shifts, and Peister’s time 

with Melanie decreased as Eurek relied more on the nanny 

to care for Melanie. In the first half of 2018, Peister stopped 

sending checks to Eurek for Melanie’s daycare. Peister’s time 

with Melanie increased in January 2019, when the hired nanny 

moved away. Eurek hired a second nanny in February 2019, 

and Peister’s time with Melanie was reduced to watching 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

her approximately once per week. This arrangement continued 

until early 2020, when Eurek stopped asking Peister to look 

after Melanie.

June 2020 Complaint 

for Parenting Time

On June 8, 2020, Peister filed a “Complaint to Establish 

Custody and Visitation in Loco Parentis” in the district court. 

Peister’s complaint initially named the individual believed to 

be Melanie’s biological father as a defendant, but Peister dismissed this claim after he received notice that this individual 

was determined not to be Melanie’s biological father as part 

of a separate action. Peister claimed that he had established 

a parent-child relationship with Melanie such that he stood in 

loco parentis and asked the district court to award him parenting time with Melanie. In her answer, Eurek argued that Peister 

did not stand in loco parentis to Melanie and that parenting 

time with Peister was not in Melanie’s best interests.

The district court held a hearing on January 14, 2021. The 

parties offered exhibits and witness testimony, and Melanie 

also testified outside the presence of the parties. Additionally, 

Peister submitted a proposed parenting plan to the court. We 

now summarize the parties’ respective testimonies given at 

the hearing.

Peister testified that while his relationship with Melanie was 

initially “just as a friendly figure,” he over time “kind of just 

took the role for” being a father figure to her. He gave examples of how he spent time together with Melanie during the 2 

years that he lived with her and Eurek, describing that he and 

Melanie would “watch TV together, play games together, [and] 

ride the trike together.” He explained that he would watch 

over Melanie when Eurek was at work, pick Melanie up from 

daycare or other places, visit his parents with Melanie, and 

occasionally go on family vacations with Eurek and Melanie 

during this period. Regarding financial support, Peister recalled 

that he and Eurek pooled their money together to cover the 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

cost of necessities for Melanie and had also established a joint 

bank account concurrent with their consolidation of certain 

debts. The parties each retained their own separate accounts in 

addition to this joint account.

After the end of the parties’ relationship and their physical 

separation in August 2016, Peister described that his relationship with Melanie “didn’t change much at all” and “[t]he only 

thing that really changed . . . was that there [were] two households.” He stated that he and Eurek coordinated their schedules 

such that he was taking care of Melanie “at least 40 percent of 

the time” in the same fashion he had while he lived together 

with Eurek. Peister testified that he kept a room at his home for 

Melanie and provided food, clothing, toys, and other items for 

when she stayed with him. Eurek typically brought Melanie to 

Peister’s home in the evening after Melanie had already eaten 

and bathed, and Peister confirmed that he would spend around 

“a half hour to an hour with [Melanie] before bedtime” and 

some amount of time with her in the morning if she was going 

to daycare that day. Peister acknowledged that he would occasionally have his roommate or another friend pick up Melanie 

from daycare and help watch over her if Peister was working. 

Peister sent several checks to Eurek to help pay for Melanie’s 

daycare from late 2016 until 2018. He affirmed on crossexamination that he stopped sending these payments in 2018 

due to his dissatisfaction with the time he was allowed with 

Melanie. He said that Eurek did not involve him in Melanie’s 

education and health care and that she did not notify him of 

any related expenses. He nonetheless attended Melanie’s dance 

recitals and soccer games and practices.

Peister also drew attention to comments made by Eurek and 

Melanie indicating that he was a father figure to Melanie and 

to his own impressions of his role. Eurek had made several 

statements to Peister such as “I care about you as [Melanie’s] 

dad.” Peister recalled that Melanie would refer to him as “dad” 

on multiple occasions. He explained that the reason behind 

his decision to financially support Melanie—even after he and 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

Eurek separated—was because he felt he “had a father relationship” with Melanie and that the same feeling led him to 

offer to provide for half of Melanie’s expenses before he filed 

this action.

Conversely, Eurek described Peister’s involvement with 

Melanie as “nothing outside of what [she] would consider 

a friend would do.” Eurek testified that Peister had little or 

no involvement in parenting functions such as “changing 

diapers,” “potty training,” “[b]athing,” “[p]utting Melanie to 

bed,” “[g]etting up at night with Melanie,” and “[g]oing to 

[Melanie’s] doctor appointments.” Eurek “would always stay 

home with [Melanie] if she was ill” and “would come home 

and take care of ” Melanie if she became sick during her overnight work shifts. Eurek had Melanie attend daycare on weekdays when she worked, and when she had to work weekend 

shifts, Melanie spent “probably 95 percent” of those weekends with Eurek’s parents in Loup City. Peister would watch 

Melanie overnight during Eurek’s weekday shifts if she “did 

not have any other child care when [she] was working during 

the week.” Eurek testified that Melanie “would always be fed 

and bathed and put to bed before [she] had left for work” on 

those nights, including “tuck[ing] her in” before Eurek left. 

She agreed that Peister “would be responsible if [Melanie] 

woke up during the night.”

Eurek stated that after the end of the parties’ romantic relationship, Peister “knew he was also [her] last option if [her] 

parents could not take care of Melanie.” Eurek recalled that 

beginning in the summer of 2017, Melanie would spend the 

majority of summers with Eurek’s parents in Loup City, and 

she denied that Peister would have contact with Melanie or 

request time with her during the summertime. After she and 

Melanie moved to Hastings, Eurek hired a nanny to take care 

of Melanie when she was working, and Peister would take care 

of Melanie “[m]aybe one day a week.” Eurek affirmed that 

Melanie would typically have eaten and been bathed before 

dropping her off with Peister during this period.
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

Although Peister’s time with Melanie increased after the 

first nanny hired by Eurek moved in January 2019, Eurek testified that she became aware of issues such as Melanie “not 

getting to school on time or not being picked up after school 

or day-care” that coincided with Peister’s time with Melanie. 

Eurek thereafter hired a second nanny in February 2019 to 

ensure that Melanie would be “getting the stuff that she 

needs.” Eurek testified that Peister was not involved in decisions regarding Melanie’s education and health care, noting 

that he had not been involved with parent-teacher conferences, 

Melanie’s enrollment in a “Head Start” program, meetings 

regarding Melanie’s individualized education program, and 

Melanie’s doctor and dentist appointments. Eurek also stated 

that although Peister had helped her pay for Melanie’s daycare 

from 2016 until 2018, he did not help her pay for the nannies 

she hired or Melanie’s medical bills, school expenses, and 

basic necessities. After hiring the second nanny, Eurek characterized Peister as the “last ditch effort” if she “didn’t have 

anybody else to watch” Melanie, which ended in March 2020 

when Eurek chose to end Peister’s contact with Melanie.

Eurek further explained that at the time of the hearing, she 

and Melanie had been living together with her current boyfriend, who is the biological father of Eurek’s second child. 

Eurek indicated that Melanie had warmed up to Eurek’s boyfriend quickly and “has come around to start calling him dad.” 

She testified that they were presently planning to be married 

“in the next year” and for him to formally adopt Melanie if 

they were to get married.

Following the hearing, the district court entered an order on 

February 4, 2021, dismissing Peister’s complaint. After summarizing the testimony given, the court found that Peister did 

not stand in loco parentis to Melanie. The court stated that 

Peister made “no claim that he has participated in the significant decisions for Melanie” regarding her “healthcare needs, 

education, religion, or other matters concerning [her] welfare” 

and observed that it was Eurek who “made arrangements 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

for [Melanie’s] care” and attended to Melanie’s education 

and health care. The court concluded that while Peister had 

“watched her, picked her up, played with her, went on some 

trips with her and paid some of her expenses,” Peister had 

not assumed all obligations incident to the parental relationship with Melanie. The court also found Peister’s financial 

support for Melanie was “minimal” and noted that although 

Peister originally paid part of Melanie’s daycare expenses, he 

had “paid nothing towards her daycare since the first part of 

2018.” The court alternatively concluded that if Peister had 

previously “stood in loco parentis [to Melanie] at some time, 

he lost that standing.”

Peister now appeals.

ASSIGNMENT OF ERROR

Peister claims the district court erred in finding that he did 

not stand in loco parentis to Melanie.

STANDARD OF REVIEW

[1] When a jurisdictional issue does not involve a factual 

dispute, determination of a jurisdictional issue is a matter of 

law which requires an appellate court to reach a conclusion 

independent from the trial court’s; however, when a determination rests on factual findings, a trial court’s decision on the 

issue will be upheld unless the factual findings concerning 

jurisdiction are clearly incorrect. Hawley v. Skradski, 304 Neb. 

488, 935 N.W.2d 212 (2019).

ANALYSIS

Standing and Doctrine 

of In Loco Parentis

[2-4] The issue before this court is whether Peister stands in 

loco parentis to Melanie. A party that stands in loco parentis 

to a minor child has standing to seek custody and visitation 

regarding that child. 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). 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

See, also, In re Guardianship of Brydon P., 286 Neb. 661, 838 

N.W.2d 262 (2013) (in context of court action in which nonparent seeks custody or visitation with child, in loco parentis 

is doctrine of standing). Whether a party who commences an 

action has standing presents a jurisdictional issue. See Hawley 

v. Skradski, supra. When a challenge to a party’s standing is 

raised after the pleadings stage and the trial court holds an evidentiary hearing and reviews evidence outside the pleadings, 

an appellate court reviews the trial court’s factual findings 

under the clearly erroneous standard. See id. However, the 

trial court’s ruling regarding whether the party has standing 

is reviewed de novo, because it presents a question of law. 

See id.

Here, the parties presented evidence regarding Peister’s relationship and involvement with Melanie to the district court at 

the hearing held on January 14, 2021. Although the issue of 

Peister’s standing was raised in Eurek’s answer to his complaint, the evidence considered by the court at this hearing was 

outside of the parties’ pleadings. As such, we review the court’s 

factual findings for clear error, and we review de novo the 

court’s determination that Peister did not have standing under 

the doctrine of in loco parentis.

Peister Does Not Stand 

In Loco Parentis

[5-7] The Nebraska Supreme Court has described the 

common-law doctrine of in loco parentis as a means “to afford 

rights to nonparents where the exercise of those rights is in the 

best interests of the child.” Latham v. Schwerdtfeger, 282 Neb. 

at 128, 802 N.W.2d at 72. A person standing in loco parentis 

to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to 

the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and 

liabilities of such person are the same as those of the lawful 

parent. Carroll v. Gould, 308 Neb. 12, 952 N.W.2d 1 (2020). 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

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. Id.

The parental relationship should be found to exist only if the 

facts and circumstances show that the individual means to take 

the place of a lawful parent not only in providing support but 

also with reference to the natural parent’s office of educating 

and instructing and caring for the general welfare of the child. 

State on behalf of Lilliana L. v. Hugo C., 26 Neb. App. 923, 

924 N.W.2d 743 (2019).

The Parenting Act, Neb. Rev. Stat. § 43-2920 et seq. (Reissue 

2016 & Cum. Supp. 2020), offers guidance as to the obligations that the Legislature has deemed important to the parental 

relationship. For purposes of the Parenting Act, § 43-2922(17) 

provides:

Parenting functions means 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. Parenting functions include, but are not limited to:

(a) Maintaining a safe, stable, consistent, and nurturing 

relationship with the child;

(b) Attending to the ongoing developmental needs of 

the child, including feeding, clothing, physical care and 

grooming, health and medical needs, emotional stability, 

supervision, and appropriate conflict resolution skills and 

engaging in other activities appropriate to the healthy 

development of the child within the social and economic 

circumstances of the family;

(c) Attending to the adequate education for the child, 

including remedial or other special education essential to 

the best interests of the child;

. . . .

(f) Assisting the child in developing skills to maintain safe, positive, and appropriate interpersonal relationships; and
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PEISTER v. EUREK

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(g) Exercising appropriate support for social, academic, athletic, or other special interests and abilities of 

the child within the social and economic circumstances of 

the family.

Despite Peister’s claims to have “accepted the responsibilities of a parent—both financial and otherwise,” brief for appellant at 13, Peister had a minimal role in fulfilling these parenting functions for Melanie both during the parties’ relationship 

and after their separation. The record indicates that Eurek’s 

work schedule and available sources of care dictated Peister’s 

time with Melanie, and his role primarily entailed playing with 

her and looking after her for brief periods of time. However, 

per the parties’ testimonies, Peister’s involvement as a parental 

figure in Melanie’s education, health, and general care was 

minimal, and although Peister claimed that Eurek chose not 

to involve him in these matters, Peister’s efforts to become 

involved were limited. We also note that Peister did not help 

cover costs associated with Melanie’s education and health 

care, and the limited financial support that he did provide 

effectively evaporated in 2018 when he voluntarily stopped 

sending checks to help pay for Melanie’s daycare. Only after 

Eurek cut off his contact with Melanie in early 2020 did Peister 

offer to pay half of Melanie’s expenses.

[8] The record supports the district court’s factual findings 

and its determination that Peister did not establish that he 

assumed all obligations incident to the parent-child relationship. We likewise conclude that Peister does not stand in loco 

parentis to Melanie and lacks standing to seek court-ordered 

parenting time. We also agree with the district court’s determination that even if “Peister stood in loco parentis at some 

time, he lost that standing.” The court stated it did “not believe 

Peister ever stood in loco parentis to [Melanie] and [had] certainly . . . not done so since early in 2018.” Because in loco 

parentis status is transitory and not permanent, it may be lost. 

Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017). 

Once the person alleged to be in loco parentis no longer 
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PEISTER v. EUREK

Cite as 30 Neb. App. 366

discharges all duties incident to the parental relationship, the 

person is no longer in loco parentis. Id.

CONCLUSION

For the reasons set forth above, the order of the district court 

dismissing Peister’s complaint is affirmed.

Affirmed.