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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

State of Nebraska on behalf of Lilliana L., 

a minor child, appellee, v. Hugo C., appellant, 

and Theresa L., intervenor-appellee.

___ N.W.2d ___

Filed February 12, 2019. No. A-17-1316.

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. 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.

3. ____: ____. The term “in loco parentis” refers to a person who has fully 

put himself or herself in the situation of a lawful parent by assuming 

all the obligations incident to the parental relationship and who actually 

discharges those obligations.

4. Parent and Child: Intent. The assumption of the parental relationship 

is largely a question of intention which should not lightly or hastily 

be inferred.

5. 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 father or mother 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.

6. Appeal and Error. Appellate courts will not consider issues on appeal 

that were not presented to or passed upon by the trial court.

7. 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 

Nebraska Supreme Court Online Library

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

02/12/2019 08:08 AM CST
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

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

to custody of the child.

8. ____: ____. 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.

9. ____: ____. The best interests of the child are important 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.

10. Child Custody: Parental Rights: Presumptions. Parental preference 

creates a presumption in favor of parental custody.

11. Child Custody: Parental Rights: Proof. 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.

12. Child Custody: Words and Phrases. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably 

prevent, performance of a reasonable parental obligation in child rearing which has caused, or probably will result in, detriment to a child’s 

well-being.

13. Child Custody. Evidence of unfitness should be focused upon a parent’s ability to care for a child, and not any other moral failings a parent 

may have.

14. ____. Evidence of unfitness should be focused upon a parent’s present 

ability to care for a child, and evidence of a parent’s past failings is 

pertinent only insofar as it suggests present or future faults.

15. Child Custody: Parental Rights. The quantum of proof necessary to 

prove unfitness is analogous to the proof necessary to terminate parental rights.

16. ____: ____. While preference must be given to a biological or adoptive 

parent’s superior right to custody where the parent is not unfit and has 

not forfeited his or her parental rights, a court also considers the child’s 

best interests in making its custody determination.

Appeal from the District Court for Burt County: John E. 

Samson, Judge. Affirmed.

Ryan D. Caldwell, of Caldwell Law, L.L.C., for appellant.
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

Michael J. Tasset and Denise E. Frost, of Johnson & Mock, 

P.C., L.L.O., for intervenor-appellee.

Pirtle, Bishop, and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Hugo C., the biological father of Lilliana L. (Lilli), born in 

April 2012, appeals from an order of the district court for Burt 

County awarding custody of Lilli to Theresa L., Lilli’s maternal aunt. Hugo challenges the court’s determining that Theresa 

had standing to seek custody based on the in loco parentis 

doctrine, allowing Theresa to intervene when she had “unclean 

hands,” and awarding her custody of Lilli. Based on the reasons that follow, we affirm.

BACKGROUND

This case is the third case filed regarding custody and support for Lilli. The first case was filed by the State on January 

23, 2014, against Hugo for child support because Melanie L., 

Lilli’s biological mother, had applied for medical assistance 

benefits for Lilli. Hugo denied that he was Lilli’s father at 

that time. Court-ordered genetic testing was ordered, and on 

August 4, the results showed that Hugo was Lilli’s biological father.

The second case was filed by Melanie in September 2014. 

She filed a separate action for sole legal and physical custody 

of Lilli. The first case was dismissed as a result. Melanie then 

dismissed her case on August 13, 2015, the same day trial was 

to begin.

The third and present case was commenced on August 27, 

2015, when the State filed a second complaint to establish support against Hugo. Hugo was ordered to pay child support in 

March 2016. On March 16, Hugo filed a “Petition for Custody” 

of Lilli. Melanie died suddenly 2 months later on June 12. The 

cause of her death is not clear from the record. Theresa testified that Melanie was born with a heart defect and was on 
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heart medication at the time of her death. One of Melanie’s 

brothers testified that based on the autopsy, the cause of her 

death was inconclusive. Following Melanie’s death, Lilli began 

living with Theresa at her home in Colorado.

On August 29, 2016, after learning that Lilli was living in 

Colorado with Theresa, Hugo filed a motion for “Emergency 

Custody Determination” seeking temporary custody of Lilli. 

Theresa filed a complaint to intervene and a motion for temporary custody. The trial court sustained Theresa’s motion to 

intervene. The court overruled Hugo’s motion for emergency 

custody and allowed Lilli to continue living with Theresa. The 

court also ordered therapeutic counseling sessions and parenting sessions between Hugo and Lilli. Hugo met Lilli for the 

first time in September 2016, when she was 41⁄2 years old, 

which was 2 years after he knew that he was Lilli’s biological father.

On May 12, 2017, Theresa filed an answer and cross-claim 

alleging that Hugo was not a fit and proper person to have custody of Lilli and that an award of custody to Hugo was not in 

Lilli’s best interests. Theresa sought legal and physical custody 

of Lilli and permission for Lilli to reside in Colorado.

Trial was held in July and September 2017. The evidence 

showed that after Melanie died, her family discussed who 

would be in the best position to care for Lilli. The family 

decided that Lilli should live with Theresa. Theresa testified 

that Hugo was never considered as a potential caregiver for 

Lilli because he had never met her. Theresa testified that neither she nor her family tried to hide the fact from anyone that 

Lilli was going to live with Theresa in Colorado. Theresa took 

Lilli to her home in Colorado on July 1, 2016, where she continued to live at the time of trial.

There was evidence that Theresa had a relationship with 

Lilli before Melanie died. After moving to Colorado in 2013, 

Theresa made multiple trips per year to Nebraska to visit 

family, which trips would include spending time with Lilli. 

Theresa testified that Lilli knew who she was when she came 
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

to Nebraska for Melanie’s funeral. There was also testimony 

by Theresa and her two brothers that Melanie wanted Theresa 

to care for Lilli if Melanie ever became unable to care 

for her.

When Theresa returned to Colorado with Lilli, Theresa’s 

main focus was to get Lilli to a doctor. Lilli suffers from 

chronic gastrointestinal issues, and at that time, Lilli was 

bloated, had dark circles under her eyes, and was experiencing severe digestive problems. Theresa testified that she could 

not get Lilli in to see a doctor without Hugo’s consent to 

obtain medical treatment for Lilli. Theresa called Hugo and 

told him she was caring for Lilli and needed his consent for 

medical treatment. Hugo did not express concern that Lilli 

was in Colorado with Theresa. The next contact Theresa had 

with Hugo was in early August 2016, when Hugo called and 

accused Theresa of kidnapping Lilli and wanted her to drop 

off Lilli in a parking lot in Omaha, Nebraska, so he could pick 

her up.

There was much evidence presented in regard to Hugo’s 

past, including his criminal history. The evidence showed 

that Hugo was charged with a felony drug crime in 2004 as a 

result of law enforcement officers’ seizing methamphetamine, 

cocaine, and marijuana from his house. He was allowed to participate in a drug court program, which he successfully completed, and the charge was dismissed. He was also investigated 

for dealing drugs in 2011, but no charges were filed. In 2007, 

Hugo pled guilty to assaulting his son, who was 7 years old 

at the time, as a result of “spank[ing] him with a belt” which 

left bruises on his buttocks and thighs. Hugo also had multiple 

convictions for driving offenses, including driving with a suspended license and reckless driving.

Hugo had been married and divorced four times and three of 

his ex-wives had sought and received domestic violence protection orders against him at various times. Hugo testified that 

he thought he and Melanie started dating in 2010 and that she 

moved in with him 8 or 9 months later. At some point, Melanie 
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

moved out, but she and Hugo continued to see each other on 

occasion. Hugo’s last contact with Melanie was on August 23, 

2011, when she sent him an email stating that she was pregnant and claiming that he was not the baby’s father.

Dr. Carol Lay, a psychologist who began having therapy 

sessions with Lilli in September 2016, testified that Lilli first 

met Hugo through “Skype” in October 2016 and that in-person 

visits started in November 2016. She testified that she observed 

a marked shift in Lilli’s demeanor and play themes when she 

began having in-person contact with Hugo: Lilli became more 

aggressive, fearful, angry, and resentful. She testified that Lilli 

was “attached” to Theresa and Theresa’s fiance and that Lilli 

did not know how to “process” Hugo’s appearance in her life. 

Lay testified that Lilli was concerned that Hugo would “take 

her away” from Theresa and Theresa’s fiance.

In June 2017, Hugo had an 8-hour visit on two consecutive 

days, the longest visits that had taken place. Lay testified that 

after these visits, Lilli “was more agitated and . . . disorganized” and Lilli feared that she was going to lose Theresa and 

Theresa’s fiance, as well as her home.

According to Lay, if Lilli’s bond with Theresa and Theresa’s 

fiance is broken, Lilli will be “exceedingly vulnerable to physical and mental health problems in adulthood, not to mention a 

compromised development in many areas of [her] life; learning, behaviors, school achievement, at not just an emotional 

level, but also at a biological level.” She further testified that 

based on Lilli’s exposure to adverse childhood events, she is “a 

highly vulnerable child in terms of trusting [others], in terms 

of believing that the world is a safe place and that she will be 

taken care of and protected.” Lilli’s anxiety and exposure to 

adverse childhood events had already caused developmental 

delay in her fine motor skills.

Lay testified that if Lilli is going to develop “a solid relationship [with Hugo] based on attachment,” it needs to progress at Lilli’s rate, and not based upon the wishes or demands 

of adults. She testified that “days-long overnight” parenting 
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

time with Hugo was “risky” at that time and could be damaging to Lilli, because Lilli is afraid that Hugo will be angry 

with her if she misses Theresa, and Lay did not believe that 

Hugo had the capacity to comfort Lilli if she is in distress and 

she is still somewhat fearful at times. Lay testified that maintaining this state of fear increases anxiety in a way that is not 

good for Lilli emotionally or physically. Lay further testified 

that awarding Hugo custody at the time of trial would traumatize Lilli and was not in her best interests. She stated that 

Lilli was “a vulnerable child who should be protected from 

being retraumatized.”

At the time of trial, Hugo had never contacted Lay to ask 

about Lilli’s progress in therapy or to ask what he could do to 

help Lilli. Lay found this concerning.

Terry James-Banks, a psychotherapist, supervised several 

visits between Lilli and Hugo in 2017. She testified that it was 

not in Lilli’s best interests to have overnight visits with Hugo 

at that time. Her opinion was based on the fact that at the end 

of the 8-hour parenting time she observed in June 2017, Lilli 

was ready and anxious to go back to Theresa’s home. Lilli also 

showed insecurity in her relationship with Hugo. James-Banks 

stated that building a relationship with Lilli would take time 

and patience and that forcing her into overnight visits before 

she was ready would increase her distress and her tendency 

to resist it. James-Banks testified that Lilli is very vulnerable 

and that disruption of “a second primary attachment relationship” would create a sense of loss, further grief, and potential 

mental health issues. She further testified that another adverse 

childhood experience could cause Lilli to suffer permanent or 

long-term emotional damage.

Following trial, the trial court entered an order on November 

22, 2017. The trial court stated that it did not find Hugo’s testimony credible, because there were “numerous occasions where 

[he] minimized, could not remember, or his in-court testimony 

was contradicted by his previous statements or other credible 

witnesses.” The trial court awarded Theresa sole legal and 
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

physical custody of Lilli, subject to parenting time with Hugo, 

and allowed her to permanently remove Lilli to Colorado. The 

court found that it was in Lilli’s best interests to remain in 

Theresa’s sole legal and physical custody notwithstanding the 

parental preference principle and that “it would be harmful to 

[Lilli’s] physical and mental health if the legal custody and 

possession of the minor child is awarded to [Hugo].” The trial 

court also established a parenting plan awarding Hugo parenting time with Lilli. Hugo does not challenge the terms of the 

parenting plan.

ASSIGNMENTS OF ERROR

Hugo assigns that the trial court erred in (1) finding that 

Theresa stood in loco parentis and had standing to seek custody 

of Lilli, (2) allowing Theresa to intervene in the action despite 

evidence of her “unclean hands,” and (3) awarding Theresa 

custody.

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. 

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

ANALYSIS

In Loco Parentis.

Hugo first argues the trial court erred in finding that Theresa 

stood in loco parentis to Lilli and that therefore, she had standing to bring an action for custody of Lilli.

[2] 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. Weinand v. Weinand, 260 Neb. 146, 616 

N.W.2d 1 (2000), disapproved on other grounds, Windham v. 

Griffin, supra.
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

Cite as 26 Neb. App. 923

[3-5] The term “in loco parentis” refers to a person who has 

fully put himself or herself in the situation of a lawful parent by 

assuming all the obligations incident to the parental relationship and who actually discharges those obligations. Weinand 

v. Weinand, supra. The assumption of the parental relationship 

is largely a question of intention which should not lightly or 

hastily be inferred. 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 the lawful father or 

mother 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. See id.

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

(Reissue 2016 & Cum. Supp. 2018) defines parenting functions. Specifically, § 43-2922 states:

For purposes of the Parenting Act:

. . . .

(17) Parenting functions mean those aspects of the 

relationship in which a parent or person in the parenting 

role makes fundamental decisions and performs fundamental functions necessary for the care and development 

of a child. 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 adequate education for the child, 

including remedial or other special education essential to 

the best interests of the child;

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

(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.

The evidence established that Theresa fulfilled all of these 

functions for Lilli after Melanie died. Theresa brought Lilli 

into her home a few weeks after Melanie’s death in June 2016, 

and Theresa continued to care for Lilli at the time of trial, 1 

year later. She has provided Lilli with a nurturing and stable 

living environment. Theresa had been caring for Lilli’s dayto-day physical needs, was getting her the medical care she 

needs and having her follow a restricted diet due to her gastrointestinal problems, and meeting her emotional needs. She 

also found a therapist for Lilli to help her deal with Melanie’s 

death. Theresa and Lilli have a close relationship, and Lilli 

has an “attachment bond” with Theresa. Further, Theresa is a 

maternal aunt to Lilli and had a familial relationship with her 

prior to the death of Melanie. We conclude that the trial court 

did not err in finding that Theresa stood in loco parentis to Lilli 

and had standing to seek custody of Lilli.

Unclean Hands.

Hugo next assigns that the court erred in allowing Theresa 

to intervene in the action despite evidence of her “unclean 

hands.” He alleges that the doctrine of unclean hands applies 

because Theresa removed Lilli from her home and family in 

Nebraska and failed to provide adequate notice to the court 

or Hugo.

[6] This is the first time Hugo has raised an “unclean 

hands” argument; the argument was not raised to the trial 

court. Appellate courts will not consider issues on appeal 

that were not presented to or passed upon by the trial court. 

In re Interest of Paxton H., 300 Neb. 446, 915 N.W.2d 45 
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STATE ON BEHALF OF LILLIANA L. v. HUGO C.

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(2018). Accordingly, we do not address this assignment of 

error further.

Awarding Theresa Custody.

Lastly, Hugo assigns that the trial court erred in awarding 

Theresa custody of Lilli. He specifically takes issue with the 

court’s finding that the presumption of parental preference was 

negated based on “‘some showing of unfitness’” and the best 

interests of Lilli. Brief for appellant at 14.

[7-10] 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. 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. at 287, 887 N.W.2d at 716, quoting 

In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 

(2004). The Supreme Court has referred to parental preference 

as a presumption in favor of parental custody. Windham v. 

Griffin, supra.

[11] 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. Id.
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[12-15] In support of his assignment that the trial court erred 

in awarding Theresa custody, Hugo first claims that the trial 

court impermissibly “broaden[ed] the standard” of unfitness 

previously stated by the Supreme Court. Brief for appellant at 

23. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance 

of a reasonable parental obligation in child rearing which has 

caused, or probably will result in, detriment to a child’s wellbeing. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 

N.W.2d 747 (2012). Evidence of unfitness should be focused 

upon a parent’s ability to care for a child, and not any other 

moral failings a parent may have. See In re Interest of Lakota 

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

evidence of unfitness should be focused upon a parent’s present ability to care for a child, and evidence of a parent’s past 

failings is pertinent only insofar as it suggests present or future 

faults. Id. The Supreme Court has analogized the quantum of 

proof necessary to prove unfitness to the proof necessary to 

terminate parental rights. Id.

The trial court found that some of Hugo’s past behavior and 

his “minimization and inconsistent testimony” was concerning, 

but that it could not conclude that Theresa met her burden of 

proof that Hugo was unfit to parent Lilli. The trial court went 

on to note that the U.S. Supreme Court has stated:

“We have little doubt that the Due Process Clause would 

be offended if a State were to attempt to force the breakup 

of a natural family, over the objections of the parents and 

their children, without some showing of unfitness and 

for the sole reason that to do so was thought to be in the 

children’s best interest.”

Quoting Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 

54 L. Ed. 2d 511 (1978) (emphasis supplied). The trial court 

then stated that “if the proper standard is ‘some showing 

of unfitness,’ then [Theresa had] met her burden of proof.” 

Hugo contends that based on this statement, the trial court 

used a standard different from that set out by the U.S. 
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Supreme Court and erred in finding there was any showing 

of unfitness.

We determine that the trial court simply noted that there was 

some evidence of unfitness based on Hugo’s past and his testimony at trial, but ultimately concluded that under Nebraska 

case law, Theresa had not proved that Hugo was unfit to the 

extent necessary to negate the preference given to Hugo as 

Lilli’s lawful parent. Further, if the trial court had concluded 

that “‘some showing of unfitness’” was sufficient to defeat 

the parental preference, it would have found it unnecessary 

to address whether Lilli’s best interests defeated the parental 

preference doctrine. It is clear from the trial court’s order that 

the court based its decision to award Theresa custody on Lilli’s 

best interests, and not on a finding that Hugo was unfit or had 

forfeited his rights.

In regard to best interests, the court found that it was in 

Lilli’s best interests to remain in Theresa’s sole legal and physical custody notwithstanding the parental preference principal 

and that “it would be harmful to [Lilli’s] physical and mental 

health if the legal custody and possession of the minor child is 

awarded to [Hugo].” Hugo takes issue with this finding.

[16] While preference must be given to a biological or adoptive parent’s superior right to custody where the parent is not 

unfit and has not forfeited his or her parental rights, a court 

also considers the child’s best interests in making its custody 

determination. Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 

710 (2016), citing In re Guardianship of D.J., 268 Neb. 239, 

682 N.W.2d 238 (2004).

As previously stated, 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. Windham v. Griffin, supra.

The evidence showed that Hugo did not have any relationship with Lilli before Melanie died. He met Lilli for the 
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first time in September 2016, when Lilli was 41⁄2 years old, 

which was 2 years after he knew that he was Lilli’s biological 

father. Theresa, in contrast, had a relationship with Lilli before 

Melanie died. Lilli started living with Theresa in July 2016, 

and she continued to live with her at the time of trial. Lilli has 

an “attachment bond” with Theresa, and there was evidence 

that breaking that bond would be detrimental to Lilli.

According to Lay, if Lilli’s bond with Theresa and Theresa’s 

fiance is broken, Lilli would be vulnerable to physical and 

mental health problems in adulthood, as well as compromised development in many areas of her life on emotional 

and physical levels. Lay testified that if Lilli is going to 

develop “a solid relationship [with Hugo] based on attachment,” it needs to progress at Lilli’s rate, and not based upon 

the wishes or demands of adults. Lay further testified that 

awarding Hugo custody at the time of trial would traumatize 

Lilli and was not in her best interests. Lay stated that Lilli 

was “a vulnerable child who should be protected from being 

retraumatized.”

James-Banks testified that at the end of the 8-hour parenting time she observed, Lilli was ready and anxious to go back 

to Theresa’s home. She also testified that Lilli was insecure in 

her relationship with Hugo. James-Banks stated that building 

a relationship with Lilli would take time and patience and that 

forcing her into overnight visits before she was ready would 

increase her distress and her tendency to resist it. James-Banks 

testified that Lilli was very vulnerable and that disruption of 

“a second primary attachment relationship” would create a 

sense of loss, further grief, and potential mental health issues. 

She further testified that another adverse childhood experience could cause Lilli to suffer permanent or long-term emotional damage.

While neither we nor the district court found Hugo to be 

unfit, it is nonetheless appropriate to consider, in conjunction 

with this testimony, Hugo’s prior conviction for child abuse 

and his history of having protection orders entered against him 
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by former spouses. This evidence, coupled with Hugo’s past 

lack of interest in maintaining a relationship with Lilli, gives us 

concern that a grant of custody to Hugo would place Lilli at an 

even higher risk for experiencing the type of adverse childhood 

experience that the mental health providers fear would cause 

permanent or long-term emotional damage.

We conclude that the trial court did not err in finding that 

the parental preference in favor of Hugo was negated by Lilli’s 

best interests and in awarding Theresa custody. We further 

note that the trial court’s award of custody to Theresa does 

not terminate Hugo’s parental rights to Lilli. The trial court 

implemented a parenting plan awarding Hugo parenting time 

with Lilli.

CONCLUSION

We conclude that the trial court did not err in finding that 

Theresa had standing to seek custody based on the in loco 

parentis doctrine and did not err in awarding Theresa custody 

of Lilli.

Affirmed.