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Cite as 295 Neb. 279

Annie J. Windham, appellant, v. Lakisha Griffin

and Lemar Mictizic, also known as

Robert M. Tizic, also known as

Robert M. McTizic, appellees.

___ N.W.2d ___

Filed December 9, 2016. No. S-15-1194.

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

custody controversy between a biological or adoptive parent and one 

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

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

to custody of the child.

3. ____: ____. 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.

4. Constitutional Law: Child Custody: Parental Rights. A biological or adoptive parent’s superior right to custody of the parent’s child 

is acknowledgment that parents and their children have a recognized 

unique and legal interest in, and a constitutionally protected right to, 

companionship and care as a consequence of the parent-child relationship, a relationship that, in the absence of parental unfitness or a 

compelling state interest, is entitled to protection from intrusion into 

that relationship.

5. Child Custody: Parental Rights. The parental superior right to child 

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

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

Nebraska Supreme Court Online Library

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

12/09/2016 09:08 AM CST
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child’s reciprocal right to be raised and nurtured by a biological or adoptive parent.

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

duties of parental care and protection.

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

Appeal from the District Court for Douglas County: Thomas

A. Otepka, Judge. Affirmed.

Mark F. Jacobs, of Anderson, Bressman & Hoffman, P.C., 

L.L.O., for appellant.

No appearance for appellees.

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

Kelch, and Funke, JJ.

Miller-Lerman, J.

NATURE OF CASE

After Miracle G. was born in September 2011 to Lakisha 

Griffin, Annie J. Windham, the appellant, agreed to care 

for Miracle until Griffin was able to care for her child. 

Aided by law enforcement, Miracle was returned to Griffin in 

January 2013, but was later temporarily placed with Windham. 

Windham subsequently filed a complaint in which she alleged 

that she stood in loco parentis to Miracle and sought custody 

of the child. After trial, the district court awarded custody of 

Miracle to Griffin and awarded considerable unsupervised visitation to Windham. Windham appeals. We affirm.

STATEMENT OF FACTS

Miracle was born to Griffin in September 2011. The day 

after her birth, Miracle went to live with Windham, who is 

Griffin’s cousin, under the mutual agreement of Griffin and 

Windham. Griffin and Windham both testified at trial that they 
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understood that Windham would take care of Miracle until 

Griffin was able to care for her.

At the time Miracle was born, Griffin had five other children, and during the 4 years of this dispute, Griffin had 

additional children. At the time Miracle was born, Windham 

had one biological child and one child for whom she was the 

guardian and who resided with her. While this matter was 

pending before the trial court, Windham had one more child, 

and the child for whom she was a guardian was no longer living with her.

From September 2011 until January 8, 2013, Miracle lived 

with Windham. In January 2013, Griffin, accompanied by 

police, recovered the child. On January 18, Windham filed a 

complaint against Griffin and Miracle’s father in which she 

alleged that she stood in loco parentis to Miracle and sought 

custody of the child. She also alleged that the parental rights of 

Griffin and Miracle’s father should be terminated. On January 

22, Windham filed a motion for temporary custody. A hearing 

was held on the motion, and Griffin did not appear at the hearing. On March 15, the district court filed a temporary order 

in which it granted temporary custody to Windham, subject to 

Griffin’s supervised visitation.

On March 19, 2013, Griffin filed an answer in which she 

stated that it would be in Miracle’s best interests for Griffin to 

have custody of her child. That same day, Griffin also filed a 

motion for a hearing to regain custody of Miracle.

On April 5, 2013, the district court filed an order in which 

it appointed a guardian ad litem for Miracle. On May 13, 

Windham filed an amended complaint in which she properly 

named Miracle’s father.

On August 21, 2013, the district court filed an order in 

which it granted Griffin’s motion to transfer the case to juvenile court. On November 26, the juvenile court filed an order 

in which it stated that the termination of parental rights was no 

longer an issue in the case and that therefore, the case should 

be transferred back to district court.
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On November 14, 2013, Griffin filed a motion to modify 

the temporary order that had granted temporary custody to 

Windham and requested that custody of Miracle be placed 

with Griffin. After a hearing, the district court on December 9 

denied Griffin’s motion.

On April 9, 2014, the district court filed an order in which it 

modified its order appointing a guardian ad litem for the child 

and stated that “such appointment shall be as an attorney for 

the minor child.”

On July 15, 2014, the district court filed a stipulated order 

which stated that Griffin and Windham were in the process of 

attempting to mediate the issues currently before the court. 

The court ordered that so long as the parties remained in 

mediation and they were each compliant with the terms and 

conditions of mediation, supervision of Griffin’s parenting 

time would not be required. After nearly 11⁄2 years, mediation 

was not successful.

The custody trial was held on October 21, 2015. Windham 

was represented by counsel, and Griffin appeared pro se. 

Miracle’s father did not appear.

At trial, Griffin testified that at the time of trial, her children ranged in age from 2 weeks old to 10 years old and 

were living with her. Griffin testified that she worked at a 

daycare and that her non-school-aged children went to the 

same daycare at which she worked. Griffin acknowledged 

that she did not send money to Windham for Miracle. Griffin 

testified that after Miracle was born in September 2011, 

Griffin saw Miracle once a week or once every 2 weeks during 2011. In 2012, Griffin saw Miracle on average once a 

month. In January 2013, with the assistance of the police, 

Griffin retrieved Miracle, and Miracle lived with Griffin until 

Windham was awarded temporary custody. Griffin thereafter 

exercised supervised visits with Miracle. Griffin testified that 

once supervised visitation ended, Windham would not allow 

Griffin to see Miracle for unsupervised visits. At trial, Griffin 
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stated that because of Windham’s interference, she had not 

seen Miracle in more than a year.

Windham generally testified that she lived with her boyfriend and her two children, ages 14 and 1. She stated that she 

worked as a busdriver. Windham testified that when Miracle 

was born, Griffin and Windham agreed that Windham would 

take care of Miracle until Griffin was “on her feet” and that 

then Windham was expected to return Miracle to Griffin. In 

contrast to Griffin’s testimony, Windham stated that Griffin 

visited Miracle twice in 2011 and about four times in 2012. 

Windham testified that starting in 2013, Griffin exercised all 

her supervised parenting time, but that she missed “a couple 

of visits” in June. Windham stated that in the winter of 2013, 

Griffin’s parenting time was not consistent. In contrast to 

Griffin’s testimony, Windham testified that Griffin had not 

requested parenting time and that as a result, Griffin had not 

exercised parenting time in 2015.

After trial, the district court filed its order on November 19, 

2015. The district court determined that Windham stood in loco 

parentis to Miracle and that therefore, Windham had standing 

to seek custody and visitation. This finding is not challenged 

on appeal.

In making the custody determination, the district court 

applied the parental preference doctrine. The court found that 

both Griffin and Windham were fit to perform the duties of a 

parent, and it found that Griffin had not forfeited her parental 

rights. The court then concluded that “awarding legal and 

physical custody of Miracle to Griffin is in the best interests of the child and consistent with parental preference.” 

The court further determined that “it would be in Miracle’s 

best interests for Windham to have unsupervised visitation 

rights to Miracle every other weekend, with two overnights, 

taking place from Friday evening until Sunday evening.” 

Windham appeals.
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ASSIGNMENT OF ERROR

Windham claims, restated and summarized, that the district 

court erred when it granted custody of Miracle to Griffin.

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. State 

on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 

230 (2015).

ANALYSIS

For a variety of reasons, Windham claims that the district 

court erred when it granted custody of Miracle to Griffin. We 

reject Windham’s arguments and affirm the order of the district court.

It is undisputed that Windham is neither the biological nor 

adoptive parent of Miracle and that Griffin is the biological 

mother of Miracle. As an initial matter, we note that the district court determined that Windham stood in loco parentis to 

Miracle and we accept this finding of the district court.

Windham acknowledges that Nebraska has adopted the 

parental preference doctrine in custody cases, but she nevertheless contends that because the district court found that 

she stood in loco parentis to Miracle, the court erred when it 

applied the parental preference doctrine to determine custody. 

Windham asserts that by virtue of her in loco parentis status, 

she and Griffin were “standing on equal ground” with respect 

to the custody dispute. Brief for appellant at 15. Windham further contends that the district court “should have simply undergone a best interests analysis” and that under such analysis, 

the court should have determined that it was in Miracle’s best 

interests to award custody to Windham. Id. at 13.

Windham’s argument that she is on equal footing with 

Griffin is derived in part from this court’s explanation of the 
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doctrine of in loco parentis. We have explained the doctrine of 

in loco parentis wherein we have stated that

“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.”

Latham v. Schwerdtfeger, 282 Neb. 121, 128, 802 N.W.2d 66, 

72 (2011), quoting Weinand v. Weinand, 260 Neb. 146, 616 

N.W.2d 1 (2000). Referring to this explanation, Windham 

claims that with respect to Miracle, she has the “same rights” 

as Griffin. Brief for appellant at 15. We do not agree.

Our reference to “same rights” goes back at least to 

Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 

(1991), which relied in part on Gribble v. Gribble, 583 P.2d 64 

(Utah 1978). In Gribble, the Supreme Court of Utah based a 

stepparent’s standing to seek visitation upon an interpretation 

of a Utah divorce statute, then codified as Utah Code Ann. 

§ 30-3-5 (1953). Using the in loco parentis doctrine as an interpretive tool, the court in Gribble determined that a “stepparent” 

serving as in loco parentis was included as a “parent” under 

the divorce statute and that the stepparent had standing. The 

ultimate source of standing was the statute, not the commonlaw doctrine of in loco parentis. The stepparent’s rights under 

the statute in Gribble were the “same” as those of a “parent” 

under the statute.

In Hickenbottom, we recognized that the stepparent in 

Gribble was functionally a parent within the terms of the 

Utah statute and had “the same rights” thereunder. To the 

extent we have suggested in cases such as Hickenbottom v. 

Hickenbottom, supra; Weinand v. Weinand, supra; and Latham 

v. Schwerdtfeger, supra, that application of the common-law 

doctrine of in loco parentis confers the same rights as those 

of a lawful parent for all purposes, they are disapproved. For 
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completeness, we note that this limitation of “same rights” as 

used in Gribble is consistent with the reading of this aspect of 

Gribble by the Supreme Court of Utah in the subsequent case 

of Jones v. Barlow, 154 P.3d 808 (Utah 2007).

The foregoing limitation on in loco parentis status is consistent with our explanation that, unlike biological and adoptive parenthood, the status of in loco parentis is temporary, 

flexible, and capable of being both suspended and reinstated. 

See, Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 

(2000); Weinand v. Weinand, supra.

With respect to rights, in Latham v. Schwerdtfeger, supra, we 

determined that a nonbiological, nonadoptive individual who 

had in loco parentis status had the right to seek custody and 

visitation. But 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. This type of custody 

dispute is one such context. This is because the parental preference doctrine still applies to this type of custody determination 

and must be considered in such a dispute. Compare Yopp v. 

Batt, 237 Neb. 779, 467 N.W.2d 868 (1991) (stating in case 

where no party claimed in loco parentis status that biological 

mother who had validly relinquished her rights forfeited parental preference and stood on equal ground with prospective 

adoptive parents).

Contrary to Windham’s suggestion that parental preference 

should be ignored due to her in loco parentis status, the 

Nebraska appellate courts have applied the parental preference doctrine in custody cases where one party is the biological or adoptive parent and another party has been found 

to have had in loco parentis status. See, e.g., State on behalf 

of Combs v. O’Neal, 11 Neb. App. 890, 662 N.W.2d 231 

(2003) (determining that parental preference doctrine applied 

but that under facts of case, biological father had forfeited 

his superior parental rights and maternal grandmother who 

stood in loco parentis was awarded custody); Cavanaugh 

v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 (1992) 
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(awarding custody to biological mother under parental preference doctrine, even though ex-stepfather stood in loco parentis 

and both parties were fit and proper persons to have custody). 

We conclude that in loco parentis status alone does not eclipse 

the superior nature of the parental preference doctrine in 

custody disputes.

[2,3] 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. See Stuhr 

v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992). See, also, 

Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483 (1980). We 

have stated that 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. We have 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.” In re Guardianship of D.J., 

268 Neb. 239, 248, 682 N.W.2d 238, 245 (2004). We have 

referred to parental preference as “a presumption in favor 

of parental custody.” Id. at 247, 682 N.W.2d at 245. See, 

also, In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 

110 (2015).

[4,5] We have recognized that the parental preference doctrine is grounded in the lawful parent’s constitutional rights. 

See id. In In re Guardianship of D.J., we stated:

“A biological or adoptive parent’s superior right to 

custody of the parent’s child is acknowledgment that 

parents and their children have a recognized unique and 

legal interest in, and a constitutionally protected right to, 
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companionship and care as a consequence of the parentchild relationship, a relationship that, in the absence of 

parental unfitness or a compelling state interest, is entitled 

to protection from intrusion into that relationship. Hence, 

the parental superior right to child custody protects not 

only the parent’s right to the companionship, care, custody, and management of his or her child, but also protects the child’s reciprocal right to be raised and nurtured 

by a biological or adoptive parent. . . .”

268 Neb. at 246, 682 N.W.2d at 244. We continue to adhere to 

the view that 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. See id.

In this custody case, the district court correctly determined 

that the parental preference doctrine applied. Because the 

parental preference doctrine applies, preference will be given 

to Griffin’s superior right to custody unless she is shown to 

be unfit or to have forfeited her superior right to custody. 

After examining the evidence, the district court did not find 

Griffin to be unfit and it found that she had not forfeited her 

parental rights. On appeal, Windham does not challenge the 

district court’s finding that Griffin is not unfit. However, on 

appeal, Windham claims that the district court erred when it 

determined that Griffin had not forfeited her parental rights. 

Applying the law to the facts of this case, we do not believe 

that the district court erred.

[6,7] This court has established that parental rights may 

be forfeited by substantial, continuous, and repeated neglect 

of a child and a failure to discharge the duties of parental 

care and protection. In re Guardianship of D.J., supra. See, 

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

522 (2008). We have also stated that allowing a third party 

to take custody, even for a significant period of time, is not 
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the equivalent to forfeiting parental preference. Farnsworth v. 

Farnsworth, supra.

The case of State on behalf of Combs v. O’Neal, 11 Neb. 

App. 890, 662 N.W.2d 231 (2003), is an example of a situation 

where the courts found that the biological father had forfeited 

his parental rights. In State on behalf of Combs, the child was 

born in 1988, and the Nebraska Court of Appeals noted that 

the father did not seek custody of the child until a paternity 

action was initiated and he was ordered to pay child support in 

1999. The child’s mother died when the child was 19 months 

old and the Court of Appeals stated that the child’s maternal 

grandmother stood in loco parentis to the child, having raised 

the child for the 13 years since the child’s birth, 111⁄2 years of 

which were after the death of the biological mother. Based on 

this evidence, the Court of Appeals affirmed the trial court’s 

finding that the father had forfeited his parental rights.

Unlike State on behalf of Combs, in this case, Griffin has 

appeared in Miracle’s life since she was born. Griffin and 

Windham both testified that at the hospital after Miracle was 

born, they reached an understanding that Windham would 

temporarily care for Miracle until Griffin was able to care for 

her. Griffin testified that she suffered postpartum depression, 

but that from a few days after Miracle’s birth, her long-term 

goal was to have custody of Miracle. The record shows that 

Griffin visited Miracle during Miracle’s first year of life. In 

January 2013, when Miracle was approximately 15 months 

old, Griffin sought reunification and, with the assistance 

of law enforcement, brought Miracle to her home. Miracle 

lived with Griffin until Windham got a temporary order from 

the district court granting temporary custody of Miracle to 

Windham. Since at least January 2013, Griffin testified she 

consistently sought and requested custody of Miracle. Griffin 

encouraged her other children to develop relationships with 

Miracle, and she exercised her visitation with Miracle until 

she was unable to find a relative to supervise visitation in late 

2014 or early 2015.
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Although Griffin initially placed Miracle in Windham’s care 

after the child’s birth, entrusting another to raise a child does 

not generally rise to the forfeiture of parental rights. We have 

stated that allowing a third party to take custody, even for a 

significant period of time, is not the equivalent to forfeiting 

parental preference. See Farnsworth v. Farnsworth, supra. 

We have noted that a parent’s decision to place a child in 

“the capable and loving hands” of a relative when the parent 

is unable to care for the child can be evidence of the parent’s 

ability to adequately provide for the child’s care. See In re 

Guardianship of D.J., 268 Neb. 239, 251, 682 N.W.2d 238, 

247 (2004).

Based on this and other evidence, the district court found 

that Griffin had not forfeited her parental rights. Upon our de 

novo review of the record, we find no error with the district 

court’s determination that Griffin did not forfeit her parental 

rights and that, as such, she retained her superior right to custody of Miracle.

The district court stated in its order that awarding custody 

to Griffin was consistent with the parental preference doctrine 

and that it was in Miracle’s best interests. We find no error in 

the district court’s approach. 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. See In re Guardianship 

of D.J., supra.

As noted above, Windham suggests that we revise our legal 

framework. She urges us to examine the merits as though the 

parties were standing on equal footing and the outcome would 

be determined only by reference to best interests. Although we 

are aware of instances where courts have determined that the 

best interests of the child defeated the lawful parent’s preference, we view these cases as exceptional. For example, in 

Gorman v. Gorman, 400 So. 2d 75 (Fla. App. 1981), the trial 

court found both the biological father and the ex-stepmother 
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to be fit and proper parents, but awarded custody of the child 

to the ex-stepmother. On appeal, the biological father argued 

that because he was the child’s natural father and he had 

been found to be a fit and proper parent, he should have been 

awarded custody of the child. The appellate court rejected the 

father’s claim, noting that the child had a strong bond with 

his ex-stepmother and that the child “felt like he never had 

a father because his father was often away from home, was 

frequently intoxicated, and physically abused and blamed this 

child for the death of his natural mother [during childbirth].” 

Gorman v. Gorman, 400 So. 2d at 78. The appellate court 

noted that “[i]n finding the father a fit and proper parent the 

trial judge was charitable.” Id. The appellate court affirmed 

the trial court’s determination that it was in the child’s best 

interests for the ex-stepmother to have custody rather than the 

lawful parent. The facts present in Gorman are not present in 

this case, and the district court ably considered best interests 

and stated in its order that it was in Miracle’s best interests for 

Griffin to have custody.

To the extent that Windham argues that it is in Miracle’s 

bests interests for Windham to be awarded custody because she 

is able to provide more amenities and a better life for Miracle, 

this is not an appropriate focus for the custody determination in 

this case. In In re Guardianship of D.J., 268 Neb. at 247, 682 

N.W.2d at 245, we stated that “in custody disputes between a 

parent and nonparent, courts turn to the parental preference 

principle because the best interests standard, taken to its logical conclusion, would place the minor children of all but the 

‘worthiest’ members of society in jeopardy of a custody challenge.” See, also, Watkins v. Nelson, 163 N.J. 235, 748 A.2d 

558 (2000); Worden v. Worden, 434 N.W.2d 341, 342 (N.D. 

1989) (stating that “[a]bsent exceptional circumstances the 

natural parent is entitled to custody of the child even though 

the third party may be able to offer more amenities”). We have 

observed that the existence of a “‘better’” alternative home 

cannot overcome the constitutionally required presumption that 
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reuniting the child with the parent is best. See In re Interest 

of Xavier H., 274 Neb. 331, 350, 740 N.W.2d 13, 26 (2007). 

We have stated: “‘“The court has never deprived a parent of 

the custody of a child merely because on financial or other 

grounds a stranger might better provide.”’” See id. at 350-51, 

740 N.W.2d at 26, quoting In re Guardianship of D.J., 268 

Neb. 239, 682 N.W.2d 238 (2004).

We additionally note that although the district court found 

it was in Miracle’s best interests for Griffin to have custody of 

her child, the court recognized, as do we, the significant bond 

established between Windham and Miracle and Windham’s 

demonstrated care of Miracle. Because of this bond, the district 

court awarded Windham considerable unsupervised visitation 

and found that this visitation was in Miracle’s best interests. 

We agree that the award of such visitation is appropriate.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

order granting custody of Miracle to Griffin.

Affirmed.