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298 Nebraska Report

WHILDE v. WHILDE

Cite as 298 Neb. 473

Hannah Whilde, appellee, 

Margaret Whilde, appellan

___ N.W.2d ___

Filed December 22, 2017. No. S-17-045.

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. During a period in which an individual stands in 

loco parentis to a child, he or she 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.

3. ____. Because in loco parentis status is transitory, once the person 

alleged to be in loco parentis no longer discharges all duties incident 

to the parental relationship, the person is no longer in loco parentis. 

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

4. Child Custody: Modification of Decree: Proof. Ordinarily, custody 

of a minor child will not be modified unless there has been a material 

change in circumstances showing that the custodial parent is unfit or that 

the best interests of the child require such action. First, the party seeking 

modification must show a material change in circumstances, occurring 

after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that 

changing the child’s custody is in the child’s best interests.

Appeal from the District Court for Otoe County: David K

Arterburn, Judge. Affirme

Anthony W. Liakos, of Govier, Katskee, Suing & Maxell, 

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

Nebraska Supreme Court Online Library

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

01/05/2018 09:12 AM CST
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WHILDE v. WHILDE

Cite as 298 Neb. 473

Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C., 

L.L.O., for appellee.

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

Riedmann, Jud

Miller-Lerman,

NATURE OF CASE

Margaret Whilde appeals the order of the district court for 

Otoe County, Nebraska, which modified a prior child custody 

order filed by a Texas court, awarded sole legal and physical custody of the child to Hannah Whilde, and ordered that 

Margaret be granted no further rights of custody or visitation 

with regard to the child. We affirm the district court’s order.

STATEMENT OF FACTS

Margaret and Hannah met in 1999 and became involved in 

a romantic relationship during which they lived together. They 

lived in Mexico when they first met, but they later moved to 

Lincoln, Nebraska, for a time before they moved to Austin, 

Texas, in 2003. After moving to Texas, both Margaret and 

Hannah had their last names legally changed to “Whilde.” The 

parties disputed whether they had a commitment ceremony 

soon after they met in 1999 and whether they considered themselves to be married, but the record indicates that the two had 

never been legally married.

In January 2010, Hannah gave birth to a baby girl. The child 

had been conceived by artificial insemination, and any parental rights of the biological father were terminated by a court 

in Texas. Margaret and Hannah were still in a relationship 

and living together at the time the child was born. Although 

the parties dispute whether there was an intent on the part of 

either Margaret or Hannah for Margaret to be considered a 

parent to the child, and although Margaret testified that she 

planned to adopt the child, Margaret conceded that she had not 

formally adopted the child.

The relationship between Margaret and Hannah began to 

decline after the child’s birth. Although the parties dispute 
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the reasons and the circumstances surrounding their separation, in November 2011, Hannah moved back to her parents’ 

home in Otoe County and she took the child with her. Soon 

after Hannah left Texas, Margaret filed an action in the district court for Travis County, Texas, in which she sought to 

have determined her legal rights with respect to the child. The 

Texas court entered an initial order in which it determined that 

Margaret had legal standing to assert rights with respect to 

the child and set forth certain rights and duties that Margaret 

and Hannah would share as “joint managing conservators” of 

the child.

After further proceedings and hearings, the Texas court 

filed an additional order on September 27, 2012. The order 

was denominated “Temporary Orders,” and in the order, the 

court appointed Hannah as “Temporary Parent Sole Managing 

Conservator” and Margaret as “Temporary Non-Parent 

Possessory Conservator” of the child. The order then set forth 

certain rights and duties that each party would have during her 

periods of possession of the child, certain rights and duties 

that each party would have at all times as conservator, and 

certain rights that Hannah would have exclusively. The rights 

that Hannah was granted exclusively included, inter alia, the 

right to direct the moral and religious training of the child, the 

right to designate the primary residence of the child without 

geographic restriction, and the right to represent the child in 

legal actions and to make other decisions of substantial legal 

significance concerning the child.

The court then set forth terms for each party’s periods 

of possession of the child. The order provided that Hannah 

would have possession of the child at all times other than 

times specified in the order when Margaret would have possession. The order generally provided that Margaret would 

have possession for one 4-day period each month and that 

Margaret’s period of possession would increase to include 

certain specified periods after the child reached the age of 3. 

With regard to support, the order provided that neither party 

was obligated to pay direct child support to the other and that, 
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instead, each party would be responsible for expenses that 

arose during her period of possession. Margaret was ordered 

to provide health insurance for the child beginning November 

24, 2012. The order stated that the temporary orders would 

“continue in force until the signing of the final order or until 

further order of this Court.” It appears that no further orders 

were filed by the Texas court until after the present action was 

filed in Nebraska.

On June 6, 2014, Hannah filed in the district court for 

Otoe County an application to register the Texas court’s 

September 27, 2012, order pursuant to the Uniform Child 

Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat. 

§§ 43-1226 through 43-1266 (Reissue 2016). She requested 

that the Nebraska court set aside the Texas order and modify 

the custody of the child in accordance with Nebraska law. 

Hannah alleged that she and the child had lived in Nebraska 

City, Nebraska, since November 2011 and that Margaret 

was currently living in Auburn, Nebraska, and had lived in 

Nebraska for more than 1 year. Hannah alleged that she was 

the biological mother of the child and that the biological 

father had been denied any parental rights by the Texas court. 

Hannah further alleged that no enforcement action had been 

taken with regard to the Texas court order since its entry and 

that no effort had been taken to bring about entry of a final 

order. Hannah alleged that it would be in the best interests of 

the child that Hannah be given sole legal and physical custody 

of the child and that Margaret should have no rights to custody 

or visitation of the child.

In her response, Margaret admitted much of the allegations 

in Hannah’s complaint, but she requested that the complaint to 

modify the Texas order be dismissed and, to the extent Hannah 

requested a suspension of Margaret’s visitations rights, that 

such request be denied.

Margaret moved back to Texas in late June 2014, shortly 

after Hannah filed this action. It appears that Margaret’s contact with the child was minimal thereafter. Hannah presented 

evidence at the trial in this matter that after Margaret moved 
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back to Texas, Margaret had experienced significant mental 

health issues resulting in hospitalization, including time in a 

long-term psychiatric hospital in New York.

In December 2015, Hannah filed a motion in this action 

seeking to suspend Margaret’s contact with the child because 

of Margaret’s mental health issues. In February 2016, the 

district court preliminarily ordered that there be no contact 

between Margaret and the child, pending the court’s determination of Hannah’s motion. In a March 10, 2016, order, the 

court provided that pending trial in this matter, Margaret would 

be allowed 15 minutes each week of supervised contact with 

the child by telephone or “[S]kype.” On March 11, Margaret 

filed an application for order to show cause, in which she 

alleged that Hannah had prevented her from exercising the 

visitation ordered in the March 10 order; Margaret requested 

an order for Hannah to show cause why she should not be held 

in contempt for failing to allow the ordered visitation. In an 

order entered March 21, the court addressed various matters, 

including the following:

Visitation issue is further addressed by the Court. 

Court finds that Defendant [Margaret] has not provided records of her current treatment as previously 

ordered. Court finds that said records from the New York 

Psychiatric Institute shall be provided to counsel for 

Plaintiff [Hannah] on or before April 1, 2016. Fifteenminute weekly Skype visitation shall recommence on 

April 6, 2016, at 7:00 p.m[.] Central Time. Weekly 

Skype visitation shall take place every Wednesday at 

7:00 p.m. Central Time for 15 minutes and may be 

supervised by a person acceptable to Plaintiff. Said 

supervisor shall have the ability to terminate a Skype 

visitation if Defendant engages in any inappropriate conversation with the child.

No order to show cause pursuant to contempt action 

filed by Defendant will be entered based on the foregoing 

order and based on Defendant’s unavailability to be present to prosecute such a contempt action.
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In July 2016, the district court communicated with the 

Texas court regarding jurisdiction under the Uniform Child 

Custody Jurisdiction and Enforcement Act. As a result of such 

communication, the Texas court relinquished its jurisdiction of 

the case, finding that Nebraska had become the home state of 

the child. The district court in Nebraska also found that jurisdiction of the case under the act was in Nebraska.

Trial in the matter was held on August 2 and 3, 2016, and 

the court issued its opinion and order on December 16. This 

appeal is taken from the December 16 order. In the order, the 

court set forth much of the history recounted above. The court 

noted that the parties’ testimony regarding their relationship 

and Margaret’s relationship with the child varied widely. The 

court noted Hannah’s testimony to the effect that their relationship began to deteriorate after Hannah became pregnant. 

Hannah testified that Margaret’s behavior became erratic and 

that she became afraid to leave the child alone with Margaret. 

Hannah testified that Margaret did not spend significant time 

with the child and that Hannah was the primary caregiver. 

Hannah testified that Margaret began to cut Hannah off from 

contact with others and that eventually Hannah decided 

she needed to remove herself and the child from what she 

described as a “dysfunctional environment.” Hannah obtained 

the assistance of her sister to leave Texas and return with the 

child to Nebraska.

Contrary to Hannah’s testimony, Margaret testified that she 

was actively involved in the child’s care and that she provided 

financial support by working outside the home while Hannah 

stayed at home with the child. She testified that she had initiated proceedings to adopt the child and that a final hearing 

had been scheduled for shortly after the day Hannah moved 

herself and the child out of their home. Margaret testified that 

she was shocked when she learned that Hannah had moved out 

with the child. Shortly after they moved, Margaret filed the 

action in Texas to secure her rights with regard to the child, 

and she moved to Nebraska in April 2013 to better exercise 

her rights of visitation.
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It appears that the parties generally followed the visitation 

order after Margaret moved to Nebraska. But Hannah decided 

to curtail Margaret’s visitation after an incident in May 2014, 

when Hannah asserted that Margaret kept the child beyond her 

allotted time. Hannah called the police to remove the child from 

Margaret’s home. As a result of the police visit to Margaret’s 

home, Hannah learned that the condition of Margaret’s home 

was such that Hannah did not think it an appropriate place for 

the child. Hannah presented witness testimony and other evidence to the effect that Margaret maintained a home that was 

extremely dirty and unsafe for the child. After the May 2014 

incident, Hannah filed for and obtained a harassment protection order against Margaret, and she filed the present action to 

modify custody.

Hannah also presented evidence at the trial regarding 

Margaret’s mental health issues after Margaret returned to 

Texas in 2014. Margaret generally acknowledged such mental 

health issues, but she presented evidence to support her contention that she had undergone treatment and at the time of trial 

was capable of caring for the child.

The district court in its December 16, 2016, order stated 

that the evidence showed that with regard to financial support, 

Margaret had provided the majority of support while Hannah 

and the child lived with her in Texas. However, after Hannah 

and the child left, Margaret’s financial support had been limited to support provided during her visitations in 2013 and 

2014, and after Margaret returned to Texas in 2014, she had 

provided only occasional gifts.

In determining custody issues, the district court first considered the applicability of Texas law and the effect of the 

September 27, 2012, order entered by the Texas court. The 

district court determined that because the child and both parties had lived in Nebraska for over 1 year before this action 

was filed, Nebraska law applied and controlled whatever legal 

rights the parties might have. Regarding the applicability of 

the Texas order, the district court stated that by its terms, the 

order was temporary and was not contemplated to be a final 
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order. However, the district court determined that the Texas 

order was the operative order except to the extent modified by 

the district court.

The court therefore considered the effect of the Texas court’s 

determination that Margaret held the status of a “temporary 

non-parent possessory conservator.” The court noted that there 

was not a direct counterpart to such status under Nebraska 

law. However, the court determined that such status under 

Texas law was most comparable to the concept of an in loco 

parentis relationship under Nebraska law as set forth in cases 

such as Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 

66 (2011).

The district court determined that the evidence in this case 

established that a significant relationship existed between 

Margaret and the child, from the child’s birth in January 2010 

until Hannah and the child moved to Nebraska in November 

2011. The court therefore acknowledged that an in loco parentis relationship “at one time did exist” between Margaret and 

the child. The court noted, however, that under Nebraska law, 

the establishment of an in loco parentis relationship does not 

forever grant parental rights to a nonbiological and nonadoptive parent and that once a person alleged to be in loco parentis 

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

The court determined that in the present case, the in loco 

parentis relationship that had once existed between Margaret 

and the child had ceased in the years after Margaret moved 

back to Texas in June 2014. The court recognized that in May 

2014, Hannah had unilaterally cut off Margaret’s access to 

the child, but the court determined that Hannah had legitimate reasons for doing so. The court noted evidence that 

“Margaret’s mental health quickly deteriorated, resulting in 

approximately two years of unstable living conditions and 

repeated hospitalizations.” The court recognized that at the 

time of the trial, Margaret appeared “to have regained much 

of what she has lost” and that she “was articulate in her presentation and has regained employment and a more stable 
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living environment.” The court stated that the question, however, was whether in the course of those 2 years the in loco 

parentis relationship had been severed; the court determined 

that it had.

The court concluded that “the in loco parentis relationship 

that [Margaret] previously enjoyed has been severed largely 

through her own failings as a care provider and extended history of mental instability.” The court found that the child’s 

best interests would not be served by any further court-ordered 

contact between Margaret and the child. The court further 

found that Hannah had established a safe and secure home 

for the child. The court concluded that a material change 

of circumstances existed requiring the modification of the 

Texas court’s September 27, 2012, order. The court therefore awarded sole legal and physical custody of the child to 

Hannah. The court ordered that Margaret was granted no rights 

of custody and visitation with the child and that she had no 

further obligation to support the child.

Margaret appeals the district court’s December 16, 2016, 

order.

ASSIGNMENTS OF ERROR

Margaret claims that the district court erred when it (1) 

found that her in loco parentis relationship with the child had 

been severed, (2) found that such relationship had been severed 

as a result of events that had occurred in Margaret’s life, and 

(3) granted Margaret no rights of custody or visitation with the 

child. Margaret also claims that the district court abused its discretion when it allegedly suspended contact between Margaret 

and the child as a discovery sanction.

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).
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Cite as 298 Neb. 473

ANALYSIS

Court Did Not Suspend 

Margaret’s Visitation as 

a Discovery Sanction.

We first address Margaret’s claim that the district court 

abused its discretion because it suspended contact between 

Margaret and the child as a discovery sanction. Margaret 

argues that in the order filed March 21, 2016, the court made 

her continued visitation with the child contingent upon her 

providing Hannah with copies of her mental health records; 

she asserts that this order was an inappropriate sanction for 

her failure to comply with a discovery request. In response, 

Hannah contends that the court did not limit Margaret’s visitation as a discovery sanction but instead did so to protect the 

child’s best interests pending a determination of Margaret’s 

mental health status.

We do not agree with Margaret’s characterization of the 

order, and we reject this assignment of error. As recounted 

above, Margaret’s mental health status became an issue in 

these proceedings, and in December 2015, Hannah filed a 

motion seeking to suspend Margaret’s contact with the child. 

In response to Hannah’s motion, the district court in February 

2016 entered a preliminary order that there be no contact 

between Margaret and the child, pending the court’s determination of Hannah’s motion. In a March 10, 2016, order, the 

court provided that pending trial in this matter, Margaret would 

be allowed 15 minutes each week of supervised contact with 

the child by telephone or Skype. Shortly thereafter, Margaret 

alleged that Hannah had prevented her from exercising the 

visitation ordered in the March 10 order; Margaret sought 

to have Hannah held in contempt for failing to allow the 

ordered visitation.

In the March 21, 2016, order, the court addressed these and 

other matters. The court noted that Margaret had not provided 

certain treatment records as had been previously ordered. So 

the court ordered Margaret to provide the records to Hannah’s 
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counsel on or before April 1. The court went on to order that 

Margaret’s weekly Skype visitations with the child would 

recommence on April 6 and continue weekly thereafter. The 

court stated that based in part on “the foregoing order,” it 

would not enter an order to show cause as sought in the contempt action filed by Margaret.

We do not read the order of March 21, 2016, as imposing a 

sanction on Margaret for her failure to comply with a discovery order. Instead, we read the order as addressing Margaret’s 

failure by setting a specific date—April 1—by which she was 

ordered to provide the records that were the subject of the 

prior order. Then, as a separate matter, the court responded to 

Margaret’s request that Hannah be held in contempt for failing 

to comply with the order regarding Margaret’s Skype visitation 

with the child. The court granted Margaret relief by ordering 

such visitation to recommence on April 6.

Although the court addressed both the discovery issue and 

the visitation issue in the same order, we do not read the March 

21, 2016, order as connecting the two issues in the manner 

alleged by Margaret. The court did not suspend Margaret’s visitation as a sanction for her failure to comply with the earlier 

discovery order. Instead, the court set specific dates by which 

each party would comply with previous orders—Margaret was 

to comply with the discovery order by April 1, and Hannah 

was to comply with the visitation order beginning April 6. 

Rather than suspending Margaret’s visitation, the court ordered 

visitation to resume. Also, although Margaret was ordered to 

provide the mental health records on a date prior to the date 

visitation was ordered to resume, the court did not condition 

the resumption of visitation on Margaret’s compliance with the 

order to provide records.

We do not find that the court suspended Margret’s visitation as a discovery sanction, and we therefore find no merit 

to the claim the court abused its discretion by imposing such 

a sanction.
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District Court Did Not Err When It Determined 

That Court-Ordered Visitation With 

Margaret Was No Longer in 

the Child’s Best Interests.

Margaret’s remaining assignments of error are directed at 

the district court’s determinations regarding her in loco parentis status with respect to the child and its ultimate conclusion 

that she was no longer entitled to rights of custody and visitation with the child. We find no error in the district court’s 

determinations and conclusions with regard to Margaret’s 

rights of custody and visitation.

We note first that Margaret does not appear to take issue 

with the district court’s conclusion that her legal status as 

determined in the Texas court’s order was comparable to in 

loco parentis status under Nebraska jurisprudence. We find 

no error in this determination or in the district court’s determination that based on the Texas order and the evidence 

regarding the time while the child was living in Texas, at 

one time, Margaret had in loco parentis status with respect to 

the child.

[2] We have recognized the doctrine of in loco parentis 

in child custody and visitation cases wherein we have stated 

that during a period in which an individual stands in loco 

parentis to a child, he or she 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. Windham v. Griffin, 295 Neb. 279, 887 

N.W.2d 710 (2016); Latham v. Schwerdtfeger, 282 Neb. 121, 

802 N.W.2d 66 (2011); Weinand v. Weinand, 260 Neb. 146, 

616 N.W.2d 1 (2000). In the order it filed on September 27, 

2012, the Texas court appointed Margaret as “Temporary NonParent Possessory Conservator,” while it appointed Hannah as 

“Temporary Parent Sole Managing Conservator.” The court 

set forth certain rights and duties that each party would have 

during her periods of possession of the child, certain rights 
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and duties that each party would have at all times as conservator, and certain rights that Hannah would have exclusively. 

As we read the Texas order, we agree with the district court’s 

conclusion in this case that the rights Margaret was given 

by the Texas court’s order were equivalent to the rights one 

might be awarded based on in loco parentis status under 

Nebraska law. By denominating Margaret as a “Non-Parent 

Possessory Conservator,” the Texas court appeared to recognize that although Margaret was not a biological parent to the 

child and she had not gone through the formalities necessary 

to legally adopt the child, Margaret had put herself in the situation of a lawful parent by assuming the obligations incident 

to the parental relationship and that she was therefore entitled 

to certain rights of “possession” and rights as a “conservator,” 

which rights appear to be similar to rights of custody and visitation under Nebraska law.

In addition to agreeing with the district court’s conclusion 

that the rights Margaret was granted under the Texas order 

were similar to rights one might be awarded as a result of in 

loco parentis status under Nebraska law, we also agree with 

the district court’s conclusion, based on evidence provided 

in the present proceeding, that at the time the Texas order 

was filed, Margaret had what would be considered an in 

loco parentis relationship with the child under Nebraska law. 

Evidence presented at the trial in this proceeding indicates that 

from the child’s birth in January 2010 until the time Hannah 

and the child left Texas in November 2011, Margaret had 

assumed obligations with respect to the child that were of the 

sort that are incident to the parental relationship. Therefore, in 

the present proceeding in Nebraska, the district court correctly 

concluded that at one time, Margaret had in loco parentis status with respect to the child.

Margaret does not dispute this finding; instead, Margaret 

claims that the district court erred when it determined that 

her in loco parentis status had been severed as a result of her 

actions and when it concluded that continued custody and 

visitation with Margaret were not in the child’s best interests. 
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As set forth below, we conclude that the district court did not 

err in these respects.

Although in past cases we have recognized that in loco 

parentis status may entitle a party to certain rights of custody 

and visitation, we have recognized that in loco parentis status 

is not equivalent to status as a parent and does not entitle a 

person to all the same rights that a legal parent would enjoy. 

See Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 

(2016). In Windham v. Griffin, we reasoned that “unlike biological and adoptive parenthood, the status of in loco parentis 

is temporary, flexible, and capable of being both suspended 

and reinstated” and that therefore “an individual standing in 

loco parentis, which is temporary in nature, is not the functional equivalent of a lawful parent for all purposes or in all 

contexts.” 295 Neb. at 286, 887 N.W.2d at 715-16.

We have further explained that “in loco parentis is a 

common-law doctrine that gives standing to a nonparent to 

exercise the rights of a natural parent when the evidence 

shows that the nonparent’s exercise of such rights is in the 

child’s best interests.” In re Guardianship of Brydon P., 

286 Neb. 661, 673, 838 N.W.2d 262, 271 (2013). In In re 

Guardianship of Brydon P., we recognized that in loco parentis is a standing doctrine and that in loco parentis status is 

transitory; we held that the trial court in that case did not err 

when it rejected a child’s grandmother’s request for permanent parental status under the doctrine of in loco parentis. 

Therefore, under our precedent, in loco parentis is not a permanent status; its presence, however, establishes one’s standing to seek rights of custody and visitation at a specific time 

and in a specific proceeding.

[3] Because in loco parentis status is transitory and not permanent, it may be lost. We have noted that application of the 

in loco parentis doctrine “depends upon the circumstances in 

existence when the nonparent claims a child’s best interests 

lie in allowing him or her to exercise parental rights.” Id. at 

674, 838 N.W.2d at 272. But because in loco parentis status is transitory, we have specifically stated that “[o]nce the 
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person alleged to be in loco parentis no longer discharges all 

duties incident to the parental relationship, the person is no 

longer in loco parentis” and that “[t]ermination of the in loco 

parentis relationship also terminates the corresponding rights 

and responsibilities afforded thereby.” In re Interest of Destiny 

S., 263 Neb. 255, 261, 639 N.W.2d 400, 406 (2002).

The understanding that in loco parentis status is a transitory 

status relevant to one’s standing to seek custody and visitation 

informs our review of the district court’s decision in this case. 

Margaret’s standing in the present action was not challenged. 

At the time Hannah filed this action in the Nebraska district 

court, the Texas order granting Margaret certain rights with 

regard to the child was still in effect. Therefore, it was clear 

that Margaret had an interest and standing in this action, and 

she did not need to establish standing by showing that she had 

in loco parentis status.

[4] Hannah filed the present action as a request for modification of the custody provisions of the Texas order. Ordinarily, 

custody of a minor child will not be modified unless there 

has been a material change in circumstances showing that 

the custodial parent is unfit or that the best interests of the 

child require such action. Hopkins v. Hopkins, 294 Neb. 417, 

883 N.W.2d 363 (2016). First, the party seeking modification 

must show a material change in circumstances, occurring after 

the entry of the previous custody order and affecting the best 

interests of the child. Id. Next, the party seeking modification 

must prove that changing the child’s custody is in the child’s 

best interests. Id.

Because it was not necessary to refer to the in loco parentis 

doctrine to establish Margaret’s standing in this action, the 

question whether Margaret’s in loco parentis relationship with 

the child still existed was relevant in this case only to the 

extent it was relevant to the court’s consideration of whether 

or not it was in the child’s best interests for Margaret to continue to have rights of custody and visitation. Because the 

rights Margaret had under the Texas order were based on legal 

concepts similar to our understanding of the in loco parentis 
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doctrine, we think that consideration of whether Margaret 

continued to maintain such status since the time of the Texas 

order is relevant to determining whether there has been a 

material change in circumstances and whether modification of 

Margaret’s rights is in the child’s best interests.

As we noted in Windham v. Griffin, 295 Neb. 279, 887 

N.W.2d 710 (2016), an individual standing in loco parentis, 

which is temporary in nature, is not the functional equivalent of a lawful parent for all purposes or in all contexts. We 

believe that modification of custody is a context in which one 

who obtained rights as a result of in loco parentis status will be 

considered differently from one who is a lawful parent; therefore, whether one has maintained the sort of relationship with 

the child that gave rise to in loco parentis status is relevant to 

modification of custody and visitation rights, both in determining whether there has been a material change of circumstances 

and whether a modification of custodial and visitation rights is 

in the child’s best interests.

We find that in this case, the district court did not abuse its 

discretion when it considered the change in Margaret’s relationship with the child since the time of the Texas order, along 

with other factors, and determined that a material change in 

circumstances had occurred and that a modification order to 

eliminate Margaret’s rights of custody and visitation was warranted. We note first that the evidence showed that a change 

had occurred in the circumstances that had led to the determination that Margaret had at one time held in loco parentis 

status with regard to the child. Such determination had been 

based on evidence that after her birth, the child lived with 

Margaret and Hannah and that Margaret had supported the 

child. But the evidence presented at the trial in 2016 showed 

that for a considerable time before the trial, Margaret had not, 

to use in loco parentis terminology, “assumed the obligations 

incident to the parental relationship.”

The evidence indicated that after the Texas order and until 

2014, Margaret’s support of the child had been limited to support she provided while the child was in her possession. The 
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evidence also showed that Margaret had not provided health 

insurance for the child as had been directed in the Texas order. 

The evidence further showed that since 2014, Margaret had 

assumed few of the obligations incident to the parental relationship. Margaret’s contact with the child had been minimal, 

and she had provided almost no support other than occasional gifts.

Margaret contends that these facts cannot be used against 

her, because since 2014, Hannah had prevented her from having contact with the child. But there was also evidence that 

the lack of contact was the result of Margaret’s mental health 

issues, and the district court found that Hannah had valid reasons for limiting Margaret’s contact with the child. Whether 

Margaret’s lack of contact was the fault of Hannah, the result 

of issues beyond Margaret’s control, or Margaret’s own actions, 

it is clear that for 2 years prior to the trial in this case, Margaret 

had not been performing the obligations incident to the parental relationship. To the extent Margaret presented evidence that 

she attempted to maintain a relationship with the child, such 

attempts appear to have been focused on contact and visitation 

with the child and they do not appear to have been attempts to 

perform obligations incident to the parental relationship, such 

as offering to provide financial support for the child. The evidence in this case clearly established a material change in circumstances since the time the Texas order was entered, because 

the nature and extent of Margaret’s relationship with the child 

had changed materially.

With respect to the best interests of the child, we also 

believe that the evidence supported the district court’s determination that it was in the child’s best interests to terminate Margaret’s court-ordered rights of custody and visitation. 

Because the relationship had diminished over time, there was 

less justification to legally require custody and visitation. As 

this case illustrates, it is within the court’s discretion to consider the fact that in the first instance, Margaret’s rights were 

based on her having had in loco parentis status rather than 

being a legal parent. Because her rights were initially based on 
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maintaining an existing relationship that was beneficial to the 

child rather than maintaining a parental relationship that was 

favored by the law, the fact that the relationship had diminished over time is of greater weight in this circumstance than 

it would be were the court considering the rights of a legal 

parent. The law would ordinarily favor maintaining the relationship with a legal parent. See, e.g., Windham v. Griffin, 295 

Neb. 279, 887 N.W.2d 710 (2016) (discussing parental preference). But in this case, it was valid for the court to consider 

whether maintaining the relationship through court-ordered 

rights of custody and visitation was in the child’s best interests 

when Margaret had not been assuming the obligations incident 

to the parental relationship. We conclude that the court did 

not abuse its discretion when it determined that it was not in 

the child’s best interests to continue Margaret’s court-ordered 

rights of custody and visitation.

CONCLUSION

Having rejected Margaret’s assignments of error, we affirm 

the district court’s order.

Affirmed

Wright, Kelch, and Funke, JJ., not participat