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CARROLL v. GOULD

Cite as 308 Neb. 12

Arleene E. Carroll, appellee, v. Gabriel 

W. Gould, appellee, and James 

Gould, appellant.

___ N.W.2d ___

Filed December 18, 2020. No. S-20-264.

1. Interventions: Judgments: Appeal and Error. Whether a party has the 

right to intervene in a proceeding is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the 

questions independently of the conclusion reached by the trial court.

2. Interventions: Pleadings. For purposes of ruling on a motion for leave 

to intervene, a court must assume that the intervenor’s factual allegations set forth in the complaint are true.

3. Interventions: Statutes. Intervention was unknown both at common 

law and in equity, and is a creature of statute.

4. ____: ____. The intervention statutes are to be liberally construed.

5. ____: ____. The right to intervene pursuant to statute is absolute.

6. Interventions: Pleadings. While intervention under Neb. Rev. Stat. 

§ 25-328 (Reissue 2016) is a matter of right, the court may make a 

preliminary determination whether the complaint in intervention sufficiently alleges the requisite interest.

7. ____: ____. A court has authority to exclude from the case an intervenor whose pleadings do not disclose a direct interest in the matter 

in litigation.

8. Interventions. As a prerequisite to intervention, the intervenor must 

have a direct and legal interest of such character that the intervenor will 

lose or gain by the direct operation and legal effect of the judgment 

which the court may render in the action.

9. ____. An indirect, remote, or conjectural interest in the result of a suit is 

not enough to establish intervention as a matter of right.

10. Interventions: Pleadings. A prospective intervenor can raise his or her 

claims or defenses, but those claims or defenses must involve the same 

core issue as the claims between the existing parties.

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

03/05/2021 09:08 AM CST
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Cite as 308 Neb. 12

11. Interventions: Pleadings: Standing. For a court as a preliminary matter to permit intervention as a matter of right, the intervenor must plead 

some interest in the subject matter of the litigation to give him or her 

standing in court, describing the ultimate facts evidencing the intervenor’s interest in the matter of litigation; otherwise, the intervenor is a 

mere interloper and wholly incompetent to challenge the contentions of 

the opposing parties.

12. Interventions: Pleadings. Intervention is initially determined on the 

pleadings by assuming the truth of the allegations therein, and any factual findings relating to those allegations do not occur until a subsequent 

evidentiary hearing upon a motion for summary judgment or at trial.

13. Judicial Notice: Pleadings. While a court may take judicial notice of 

prior filings that are of public record without converting the matter into 

an evidentiary hearing on the underlying merits of a pleading, such judicial notice is limited to the fact of the filings’ existence as opposed to 

the truth of the matters contained therein.

14. Interventions: Pleadings: Standing. The preliminary determination of 

standing to intervene is made at the time of the filing of the complaint 

to intervene.

15. 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.

16. 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.

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

all obligations incident to the parental relationship.

Appeal from the District Court for Sarpy County: George 

A. Thompson, Judge. Reversed and remanded with directions.

Kory L. Quandt, of Anderson, Bressman, Hoffman & Jacobs, 

P.C., L.L.O., for appellant.

Alan D. Martin for appellee Gabriel W. Gould.

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

Papik, and Freudenberg, JJ.
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CARROLL v. GOULD

Cite as 308 Neb. 12

Freudenberg, J.

I. NATURE OF CASE

The paternal grandfather appeals from the district court’s 

order denying his intervention, as a person standing in loco 

parentis, in a custody proceeding brought by the mother against 

the father. The complaint in intervention alleged that the child, 

then age 4, had lived in the grandfather’s home since her birth 

until the filing of the complaint to intervene, though the mother 

and father sometimes resided with the child at the grandfather’s 

home. The district court concluded that any in loco parentis 

status had been extinguished by virtue of a child support order 

issued more than a year prior, as well as through temporary 

custody orders placing the child with a parent, commencing 

approximately 2 months before the grandfather filed his complaint in intervention and 3 months before the court’s ruling 

denying intervention. The grandfather argues on appeal that the 

court erred by, among other things, failing to limit its inquiry 

to the pleadings, assuming that the allegations of the complaint 

in intervention were true. We reverse, and remand with directions to allow the intervention.

II. BACKGROUND

The underlying action was commenced on November 25, 

2019, when Arleene E. Carroll (Arleene) filed a complaint 

against Gabriel W. Gould (Gabriel) in the district court for 

Sarpy County to establish custody and parenting time with 

respect to their biological child, S.G., born in 2016. The 

child was born out of wedlock. A prior order was apparently 

entered on March 22, 2019, in a companion case by the same 

court, establishing Gabriel’s paternity and his child support 

obligation.

1. Arleene’s Complaint for Custody

Arleene’s complaint alleged that S.G. had lived since birth 

with Arleene at an address on Leawood Drive in Sarpy 

County, Nebraska. Arleene alleged that she knew of no person not a party to the action who had physical custody of 
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S.G. or who claimed to have custody or visitation rights with 

respect to her.

In her affidavit filed November 26, 2019, and found in the 

transcript, Arleene asserted that S.G. has resided with Arleene 

the entirety of her life. While the court at later hearings refers 

to this affidavit as exhibit 1, it is not in the bill of exceptions.

Arleene alleged further in the affidavit that Gabriel had only 

infrequent visitations with S.G., only once without her supervision, and had never asked for more visitation. Arleene expressed 

concern about Gabriel’s living situation, drug use, and criminal 

history. She also described an incident on November 24, 2019, 

when Gabriel allegedly took S.G. without their mutual agreement and refused to return her unless Arleene took Gabriel 

to court.

2. November 26, 2019, Ex Parte Order 

of Custody to Arleene

Arleene moved for an ex parte order granting her immediate legal and physical custody of S.G. The court granted the 

requested ex parte order on November 26, 2019, giving law 

enforcement the power to assist Arleene in retrieving S.G. A 

hearing was set for December 6. There is no evidence in the 

record as to whether the November 26 ex parte order was ever 

carried out, but both Gabriel and the paternal grandfather, 

James Gould (James), assert on appeal that it was not.

3. Gabriel’s Response

On December 19, 2019, Gabriel filed a “JURISDICTIONAL 

CHALLENGE and Objection to Exparte Order.” Gabriel 

claimed that Arleene did not live at the address where she 

claimed to live and had not, in fact, been S.G.’s primary caretaker. The Leawood Drive home was the residence of James 

and his wife. Gabriel alleged that Arleene had resided at James’ 

home “briefly” but, in September 2019, moved with her boyfriend to an address in Douglas County.

Gabriel asked for sole legal custody of S.G., an order 

determining child support, an order of mediation to establish 
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parenting time, and sanctions against Arleene for “lying to 

the Court.”

Arleene’s counsel moved to withdraw.

4. December 31, 2019, Temporary 

Continuation of Ex Parte Order

On December 31, 2019, the court ordered the November 26 

ex parte order to remain in effect as a temporary order and set 

the matter for hearing on January 31, 2020, on further temporary allowances. The court also ordered Gabriel and Arleene to 

participate in mediation.

Arleene’s counsel was permitted to withdraw. Gabriel and 

James both assert on appeal that Arleene never took physical 

custody pursuant to either temporary order.

5. January 31, 2020, Modification 

of Temporary Custody to 

Be With Gabriel

Following a hearing on January 31, 2020, which is not in 

the record, the court modified the temporary order so that 

temporary physical custody of S.G. was given to Gabriel subject to Arleene’s reasonable rights of parenting time as determined by the parties through mediation. The court ordered 

that medical costs and child support would remain as previously ordered.

6. James’ January 31, 2020, Complaint 

to Intervene and Motion 

for Custody

That same date, James filed a complaint to intervene as a 

third-party plaintiff, claiming in loco parentis status. James 

asserted that S.G. had resided with him since her birth and 

that he had at all times assumed the obligations incident to the 

parental relationship.

James asserted in the complaint that it was his desire and 

intention to remain in an in loco parentis relationship with 

S.G. He asserted that he was a fit and proper person to have 
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CARROLL v. GOULD

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S.G.’s temporary and ongoing physical care, custody, and control. James further asserted that it was in S.G.’s best interests 

to continue to reside with James and to have James maintain 

an in loco parentis relationship with her.

In a separate motion filed the same day, James sought temporary legal and physical custody of S.G. during the pendency 

of the underlying proceedings.

Attached to the complaint and the motion were notices that 

a hearing was set for February 7, 2020.

7. Gabriel’s Response to James’ 

Complaint and Motion

On February 7, 2020, Gabriel filed a response to James’ 

motions. Gabriel objected to the motion to intervene and any 

change to the January 31 temporary custody order placing S.G. 

with Gabriel, though he did not specifically challenge the factual allegations made in the complaint to intervene.

Gabriel also asserted that he did not receive the motions 

in a timely manner and that an additional evidentiary hearing 

would be required if the court deemed it necessary to consider them.

8. Hearing on Complaint 

to Intervene

At the February 7, 2020, hearing on the complaint to intervene, the court explained that it was focused on whether to 

allow James to intervene under in loco parentis. It would disregard James’ request for custody or parenting time until the 

question of intervention was settled.

(a) James’ Affidavit

Over Gabriel’s objection, the court allowed James to submit 

an affidavit, which was entered into evidence as exhibit 2, 

for the purpose of the motion to intervene. James signed the 

affidavit, and a notary public also signed the affidavit as having been subscribed and sworn before the notary on February 

5, 2020.
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In the affidavit, James stated that S.G. had lived in his 

home since she was born up until Gabriel came to retrieve her 

on January 31, 2020, pursuant to the court’s temporary order 

of custody.

James had “treated [S.G] as if she were my own daughter.” 

James averred that he had provided all of S.G.’s care, paid for 

her expenses, and fed and clothed her.

James elaborated that although Gabriel had lived with S.G. 

at James’ home immediately after she was born, Gabriel left 

when she was 4 months old. Since November 2016, Gabriel 

“has been absent from [S.G.’s] life,” “occasionally” coming around to see her but for no more than a week at a time. 

Gabriel had “paid no support.”

James stated that Gabriel has abused illegal drugs since high 

school and has “never had consistent living arrangements.” 

James described that in November 2019, Gabriel indicated he 

wanted to be involved in S.G.’s life, but “he was continually 

late for visits, distracted on his phone, would leave visits early, 

or not show up at all.”

James described that to his knowledge, Gabriel currently 

lived with his girlfriend in a room in a basement, which room 

he presumably was sharing with S.G. He noted that the last 

time he had visited where Gabriel lived, the home’s owner 

refused to turn on the heat and, as a result, the basement was 

around 50 degrees. James also expressed concern that Gabriel 

had “money problems and may not be able to afford the food 

and care necessary for [S.G.]” Further, Gabriel and his “roommate” work nights, and James did not “know who cares for 

[S.G.] during the day.”

As for Arleene, James averred that she also lived with S.G. 

at James’ home after S.G. was born. But “Arleen[e] has moved 

away on several occasions, often for many months at a time.” 

According to James, she did so without warning and would 

leave S.G. and her other children at James’ house. James did 

not otherwise elaborate on how much time Arleene had spent 

living with S.G. in James’ home or when she lived there.
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(b) Gabriel’s Affidavit

At the February 7, 2020, hearing, the court granted Gabriel 

leave to submit his own affidavit by February 11, which 

the court stated would be received as exhibit 3. The court 

explained it would disregard any hearsay, but would receive 

Gabriel’s affidavit even if James had an objection to it; the 

court would receive it “in the same fashion” as it was receiving 

James’ affidavit.

Gabriel filed an affidavit on February 10, 2020. It is contained in the transcript. However, the bill of exceptions does 

not reflect the receipt of Gabriel’s affidavit as an exhibit.

Gabriel averred in his affidavit that at “various times,” 

he had lived with S.G. at the Leawood Drive residence with 

James. Gabriel explained that this arrangement occurred 

because Gabriel “thought that it would be in the best interest 

of my daughter in that I was having difficulties with drugs, 

and not maintaining regular employment.” Gabriel averred that 

he had been “clean and sober for over seven months.” Gabriel 

attached a negative drug screen.

Gabriel averred that he and his fiance were living at Gabriel’s 

uncle’s home, where S.G. had her own room. In a week, he 

and his fiance would be moving to their own residence, where 

S.G. would again have her own room.

(c) February 27, 2020, Order 

Denying Intervention

A pretrial hearing was subsequently held on February 

26, 2020. Gabriel and James were represented. Arleene did 

not appear. The court acknowledged that Gabriel had completed parenting classes and that Arleene had been exercising visitation.

The following day, on February 27, 2020, the court overruled James’ motion to intervene. The court found that the 

allegations in James’ petition to intervene were not verified or 

signed by James and that they lacked “temporal proximity with 

the current action between [Arleene] and [Gabriel].”
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CARROLL v. GOULD

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The court acknowledged James’ averments in his affidavit entered into evidence as exhibit 2, but found that its 

prior November 26, 2019, temporary custody order, Gabriel’s 

affidavit, the affidavits provided at the hearings previously 

held, and the pleadings in this and a companion case all portrayed the matter “in a different light.” The court observed that 

“[a]bsent from these documents is any involvement of [James] 

to the extent [he] claims.”

According to the court, the prior child support order in the 

companion docket and its prior order placing temporary custody of S.G. with Gabriel combined with James’ pleading and 

affidavit to show that S.G. is no longer in James’ care and that 

thus, any in loco parentis status had been “extinguished.”

The court noted that James had not sought visitation pursuant to Neb. Rev. Stat. § 43-1802 (Reissue 2016) and that James 

could address any concerns for S.G.’s safety through Child 

Protective Services.

James appeals the February 27, 2020, order.

III. ASSIGNMENT OF ERROR

James assigns that the district court erred in denying his 

complaint to intervene.

IV. STANDARD OF REVIEW

[1] Whether a party has the right to intervene in a proceeding is a question of law. 1 When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. 2

[2] For purposes of ruling on a motion for leave to intervene, a court must assume that the intervenor’s factual allegations set forth in the complaint are true. 3

1 Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).

2 Id.

3 Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017).
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V. ANALYSIS

[3-5] Intervention was unknown both at common law and in 

equity, and is a creature of statute. 4 The intervention statutes 

are to be liberally construed. 5 The right to intervene pursuant 

to statute is absolute. 6

Under Neb. Rev. Stat. § 25-330 (Reissue 2016), “intervention shall be by complaint,” as opposed to through a motion, 

and is governed by the rules governing pleadings. 7 That statute provides:

The intervention shall be by complaint, which shall set 

forth the facts on which the intervention rests, and all the 

pleadings therein shall be governed by the same rules as 

other pleadings provided for in Chapter 25. If such complaint is filed during term, the court shall direct the time 

in which answers thereto shall be filed. 8

Neb. Rev. Stat. § 25-328 (Reissue 2016) elaborates that any 

person who claims an interest in the matter may become a 

party before trial commences:

Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to 

an action, or against both, in any action pending or to be 

brought in any of the courts of the State of Nebraska, may 

become a party to an action between any other persons 

or corporations, either by joining the plaintiff in claiming 

what is sought by the complaint, or by uniting with the 

defendants in resisting the claim of the plaintiff, or by 

demanding anything adversely to both the plaintiff and 

defendant, either before or after issue has been joined in 

the action, and before the trial commences.

4 Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).

5 Id.

6 Id.

7 See State ex rel. Lanman v. Board of Cty. Commissioners, 277 Neb. 492, 

763 N.W.2d 392 (2009).

8 § 25-330 (emphasis supplied).
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Lastly, under Neb. Rev. Stat. § 25-329 (Reissue 2016), “The 

court shall determine upon the intervention at the same time 

that the action is decided, and if the claim of the intervenor is not sustained, the intervenor shall pay all costs of 

the intervention.”

[6,7] We have explained that under this statutory scheme, 

while intervention under § 25-328 is a matter of right, the 

court may make a preliminary determination whether the complaint in intervention sufficiently alleges the requisite interest. 9

A court has authority to exclude from the case an intervenor 

whose pleadings do not disclose a direct interest in the matter 

in litigation. 10 But a court must assume that the intervenor’s 

factual allegations set forth in the complaint are true. 11

[8-11] As a prerequisite to intervention, the intervenor must 

have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect 

of the judgment which the court may render in the action. 12 An 

indirect, remote, or conjectural interest in the result of a suit 

is not enough to establish intervention as a matter of right. 13 A 

prospective intervenor can raise his or her claims or defenses, 

but those claims or defenses must involve the same core issue 

as the claims between the existing parties. 14 Thus, for a court 

as a preliminary matter to permit intervention as a matter 

of right, the intervenor must plead some interest in the subject matter of the litigation to give him or her standing in 

court, describing the ultimate facts evidencing the intervenor’s 

9 See, Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959); Drainage 

District v. Kirkpatrick-Pettis Co., 140 Neb. 530, 300 N.W. 582 (1941); 

John P. Lenich, Nebraska Civil Procedure § 16:8 (2020).

10 Kirchner v. Gast, supra note 9.

11 See Streck, Inc. v. Ryan Family, supra note 3.

12 In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413 

(2015).

13 Id.

14 Streck, Inc. v. Ryan Family, supra note 3.
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interest in the matter of litigation; otherwise, the intervenor 

is a mere interloper and wholly incompetent to challenge the 

contentions of the opposing parties. 15

In Kirchner v. Gast, we explained that § 25-329 describes 

the final determination of the merits on the complaint in intervention and is only applicable after an intervenor has met the 

requirements of § 25-328 by pleading the required interest in 

the matter in litigation. 16 Section 25-329 “does not apply to a 

decision of the preliminary question of the sufficiency of the 

petition in intervention.”

We indicated in Kirchner that the proper approach to attack 

a complaint in intervention is to file a demurrer, which, if 

sustained, would prevent the intervenor from participating 

in the trial. Only if the demurrer is overruled will the question of whether the pleadings and proof establish that the 

party seeking to intervene has an actual interest in the subject 

of the controversy later be determined, when the action is 

finally decided. 17

[12] We no longer have demurrers. 18 The current procedure 

to challenge a pleading is to file a motion to dismiss for failure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) or 

a motion for judgment on the pleadings under § 6-1112(c). 

Nevertheless, the fact remains that the statutory scheme 

requires that intervention initially be determined on the pleadings by assuming the truth of the allegations therein. Any 

factual findings relating to those allegations do not occur until 

a subsequent evidentiary hearing upon a motion for summary 

judgment or at trial. 19 In the event the allegations of the complaint in intervention turn out to be untrue, the intervenor will 

be taxed the costs of the intervention.

15 See County of Nance v. Thomas, 146 Neb. 640, 20 N.W.2d 925 (1945).

16 See Kirchner v. Gast, supra note 9.

17 See id.

18 See Neb. Rev. Stat. § 25-801.01 (Reissue 2016).

19 See Lenich, supra note 9.
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No party moved for summary judgment in this case, and 

the February 7, 2020, hearing was not, in any event, a proper 

evidentiary hearing. Gabriel objected that there was inadequate time to respond and prepare for the hearing, and there 

is little indication the parties understood the February 7 hearing to be their only opportunity to present proof and litigate 

the merits of James’ claim to in loco parentis status. Further, 

while the district court stated at the hearing that it would 

allow Gabriel to subsequently file an affidavit, the affidavit 

was never admitted into evidence, but was merely file stamped 

with the court. An affidavit filed in the office of the clerk of the 

district court and made part of the transcript, but which was not 

marked and received as evidence and is not contained in the 

bill of exceptions, is not evidence. 20

Gabriel did not file a motion to dismiss for failure to state a 

claim under § 6-1112(b)(6) nor a motion for judgment on the 

pleadings under § 6-1112(c); rather, Gabriel filed a response in 

which he asserted a generalized objection. Where no motion 

is filed under § 6-1112, a hearing and ruling on a complaint 

to intervene is not required any more than it would be for any 

other complaint, though we have indicated that a court may 

exercise sua sponte its authority to exclude from the case an 

intervenor whose pleadings do not disclose a direct interest in 

the matter in litigation. 21 Here, we will assume that the parties 

and the court treated Gabriel’s objection as a motion to dismiss under § 6-1112(b)(6). But regardless of whether this was 

a determination on a motion to dismiss or on the court’s sua 

sponte consideration of the complaint in intervention, we agree 

with James that the district court, rather than making factual 

findings, should have determined the matter of intervention on 

the pleadings.

20 See, Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020); Peterson 

v. George, 168 Neb. 571, 96 N.W.2d 627 (1959).

21 See, Kirchner v. Gast, supra note 9; Drainage District v. KirkpatrickPettis Co., supra note 9.
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[13] We note that while a court may take judicial notice of 

prior filings that are of public record without converting the 

matter into an evidentiary hearing on the underlying merits 

of a pleading, 22 such judicial notice is limited to the fact of 

the filings’ existence as opposed to the truth of the matters contained therein. 23 To the extent the court determined a disputed 

fact that Arleene had actually taken full custody of the child 

pursuant to the court’s prior orders, not only do the parties 

agree this did not occur, but doing so was outside the scope 

of judicial notice in relation to determining upon the pleadings 

whether to allow intervention.

[14] As for Gabriel’s taking custody of the child on January 

31, 2020, there is no dispute that the court’s January 31 order 

granting Gabriel temporary custody was carried out. And the 

complaint to intervene alleges only that James had custody up 

until January 31. However, the preliminary determination of 

standing to intervene is made at the time of the filing of the 

complaint to intervene. 24

We have never held that in loco parentis status can be 

involuntarily extinguished from one day to the next, let alone 

from one hour to the next. 25 Even to the extent the district 

22 See, In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 

(2017); DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013). 

See, also, Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 

(1990); State v. Norwood, 203 Neb. 201, 277 N.W.2d 709 (1979).

23 See Gottsch v. Bank of Stapleton, supra note 22.

24 See, Streck, Inc. v. Ryan Family, supra note 3; In re Interest of Nettie F., 

295 Neb. 117, 887 N.W.2d 45 (2016); Drainage District v. KirkpatrickPettis Co., supra note 9. See, also, Wayne L. Ryan Revocable Trust v. 

Ryan, 297 Neb. 761, 901 N.W.2d 671 (2017); School Dist. of Gering v. 

Stannard, 196 Neb. 367, 242 N.W.2d 889 (1976); Essay v. Essay, 180 Neb. 

47, 141 N.W.2d 436 (1966).

25 See, In re Change of Name of Whilde, 298 Neb. 510, 904 N.W.2d 

707 (2017); Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017); 

Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (2000); State on behalf 

of Lilliana L. v. Hugo C., 26 Neb. App. 923, 924 N.W.2d 743 (2019).
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court could hypothetically resolve through judicial notice the 

factual question of in loco parentis status before allowing 

intervention as a matter of right based on the allegations of the 

complaint, the order of temporary custody was, for all practical 

purposes, simultaneous to the complaint to intervene. As such, 

it did not support the district court’s conclusion that the order 

extinguished any prior in loco parentis status.

[15-17] We determine as a matter of law, based on the allegations of the pleadings, that James has a right to intervene. 

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. 26 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. 27 In order to stand in loco 

parentis, one must assume all obligations incident to the parental relationship. 28 James alleged that he had assumed all the 

obligations incident to S.G.’s care and that it was his intention 

to have a parent-child relationship with her.

The complaint in intervention alleged sufficient facts to 

establish James’ direct and legal interest in the litigation of 

such character that he would lose or gain by the direct operation and legal effect of the judgment that the court may render 

in the action. The district court erred in ruling that James 

did not stand in loco parentis and in denying the complaint 

in intervention.

Whether as a matter of fact James stands in loco parentis 

and whether, if so, that relationship should continue can be 

determined later, following an appropriate hearing.

26 Hamilton v. Foster, supra note 25.

27 Id.

28 Id.
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We reverse, and remand with directions for the court to 

allow the intervention and recognize James as a party to the 

litigation. In the event the allegations of the complaint are later 

found to be untrue, it shall tax costs against James pursuant 

to § 25-329.

VI. CONCLUSION

For the foregoing reasons, we reverse, and remand with 

directions.

Reversed and remanded with directions.