With the use of surrogates, in-vitro fertilization, adoption, and egg and sperm donation, same-sex couples are increasingly able to have children. However, when these relationships sour, separation and divorce of gay and lesbian couples gives rise to complex issues of child custody and visitation. In Latham v. Schwerdtfeger,1 the Nebraska Supreme Court was faced with the issue of whether the doctrine of in loco parentis granted a former same-sex domestic partner standing to sue for child custody and visitation for her non-biological child. Nebraska, like most states, does not have specific statutes to address same-sex couple unions, dissolution of marriage, and child custody disputes. Courts therefore turn to common law principles to fashion a remedy when such disputes arise.
Appellant Teri Latham and appellee, Susan Schwerdtfeger met in college and moved in together in 1985.2 After living together for a number of years, the couple desired to have a child. The women decided against adoption, and in 2001 Schwerdtfeger became pregnant through in-vitro fertilization, for which both parties shared the cost.3 Latham accompanied Schwerdtfeger to doctors’ appointments, was present at the birth of the child, P.S., and took maternity leave to care for Schwerdtfeger and the baby.4 Latham maintained that she supported the child financially and emotionally and assumed a parental role by disciplining the child. She took the child to school and medical appointments, and was identified as “Mom.”5 By all accounts Latham and Schwerdtfeger lived together with the child as a family unit until 2006, when Latham and Schwerdtfeger separated. At this point, Latham saw the child three to five times per week.6
Latham and Schwerdtfeger shared finances through the summer of 2007, at which time Latham claimed that Schwerdtfeger began to reduce Latham’s visitation with P.S. to only twice a week.7 Schwerdtfeger claimed that after the couple separated their finances, Latham discontinued financial support of the child.8 Between October and December of 2009, Latham claimed that she was only allowed to spend a total of three days with the child.9
In December 2009, Latham filed a complaint for custody and visitation of P.S. in the district court for Douglas County in which she claimed she had standing to bring the action under the doctrine of in loco parentis.10 In February 2010, Schwerdtfeger filed a motion for summary judgment.11 The court then ordered the parties to submit briefs on Latham’s in loco parentis status.12 On July 2, 2010, the district court ruled that the doctrine of in loco parentis did not apply and dismissed Latham’s claim with prejudice and granted Schwerdtfeger’s motion for summary judgment.13
Latham appealed and claimed that the district court erred when it concluded that “the doctrine of in loco parentis did not apply,” that “there were no genuine issues [as] to a material fact,” and that she “lacked standing to seek for custody and visitation of the minor child.”14
When the Nebraska Supreme Court reviewed the case, it did not make a final determination of whether to grant Latham custody and visitation. The court reversed and remanded, holding that 1) the district court erred when it concluded that the doctrine of in loco parentis did not apply and 2) there were genuine issues of material fact as to whether Latham was entitled to custody and visitation of the minor child.15
Bases for Standing
The primary issue before the court was the issue of Latham’s standing to seek custody and visitation. “Standing relates to a court’s power, that is, jurisdiction, to address issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.”16 In Nebraska, courts have held that both biological and adoptive parents have a statutory basis for standing to seek custody and visitation of a minor child.17 Because same-sex marriage and civil unions are invalid and unrecognized in Nebraska, Latham was neither eligible to marry Schwerdtfeger nor eligible to adopt P.S.18 Complicating the matter further, existing statutes addressing child custody matters failed to confer standing on Latham.19 On appeal, Latham conceded that she had no statutory basis for standing.20 The court then looked to Nebraska common law and other jurisdictions for guidance as to whether the common law doctrine of in loco parentis granted Latham standing to seek custody and visitation of the child.21
“The in loco parentis basis for standing recognizes that the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child’s best interest.”22
[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.23
Nebraska recognized in Hickenbottom v. Hickenbottom that the doctrine of in loco parentis was applicable to determine stepparent visitation rights with the best interest of the child in mind. 24 Likewise, in Weinand v. Weinand, the Nebraska Supreme Court held “in the absence of a statute, child support may properly be imposed in cases where a stepparent has voluntarily taken the child into his or her home and acted in loco parentis.”25 Prior to this case, Nebraska had only applied the doctrine in cases of stepparents and grandparents, so the court looked to other jurisdictions for guidance on the issue of whether non-biological parents may seek custody using the doctrine.26
In Kentucky, “[a] nonparent has standing to seek custody and visitation of the child when the child was conceived by artificial insemination with the intent that the child would be co-parented by the parent and her partner.”27
In J.A.L. v. E.P.H., a Pennsylvania Superior Court explained that “the doctrine of in loco parentis is viewed in the context of standing principles in general, its purpose is to ensure that actions are brought only by those with a genuine substantial interest,” and because “a wide spectrum of arrangements [have filled] the role of the traditional nuclear family, flexibility in the application of standing principles is required. . . .”28 In that case, the Pennsylvania court ruled that a non-biological parent seeking partial custody had standing under the doctrine of in loco parentis.29
The Wisconsin Supreme Court explained that “the legislature did not intend the visitation statutes to bar the courts from exercising their equitable power to order visitation in circumstances not included within the statutes but in conformity with the policy directives set forth in the statutes.”30
The Nebraska Supreme Court reversed the district court ruling, concluding that the common law doctrine of in loco parentis applied to the standing analysis of Latham’s case.31 The court explained,
Because the purpose of the doctrine of in loco parentis is to serve the best interest of the child, it is necessary to assess the relationship established between the child and the individual seeking in loco parentis status. The primary determination in an in loco parentis analysis is whether the person seeking in loco parentis status assumed the obligations incident to a parental relationship.32
Satisfied with the reasoning of other jurisdictions on the threshold question of standing, the court then addressed the issue of summary judgment.
“In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.”33 In its reversal, the court stated,
The facts taken in light most favorable to Latham show that she was involved in the decision to conceive the minor child, was present at his birth, spent the first four years of his life in the home with him, and took part in parental duties such as feeding, clothing, and disciplining him.34
The court was “persuaded that Latham had raised genuine issues of material fact for trial concerning her continuing relationship with the minor child and what outcome will best serve the child’s interests.35
The Nebraska Supreme Court placed the emphasis on the relationship between Latham and the child, asserting that the district court erred when it placed the emphasis on the relationship between Latham and Schwerdtfeger at the time of the hearing.36 The Nebraska Supreme Court determined that the district court erred when it determined that the doctrine of in loco parentis did not apply and dismissed the case.37 While the decision granted Latham standing to seek custody and visitation, the court concluded,
There are material questions of fact concerning the amount of time Latham spent with P.S. and the nature and extent of the relationship between Latham and P.S. after Latham and Schwerdtfeger separated. Whether and to what extent Latham’s participation in P.S.’s life are in his best interests must await trial.38
* Megan T.R. Hitchens is an attorney in Charlotte, N.C. She is a graduate of Elon University School of Law.
1 Latham v. Schwerdtfeger, 282 Neb. 121 (2011).
2 Id. at 123.
7 Id. at 124.
10 Id. at 122.
11 Id. at 124.
13 Id. at 125.
14 Id. at 125-126.
15 Id. at 123.
16 Id. at 126. (citation omitted).
17 Id. at 126.
18 See Neb. Const. art. I, § 29 (2000) (“Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”).
19 Latham, 282 Neb. at 128.
20 See, e.g., Neb. Rev. Stat. §§ 42-341 to 42-381 (2008) (dissolution actions); Neb. Rev. Stat. §§ 43-1401 to 43-1418 (2008) (paternity actions); Neb. Rev. Stat. §§ 43-245 to 43-2,130 (2008) (juvenile proceedings); Neb. Rev. Stat. §§ 30-2601 to 30-2616 (2008) (guardianship proceedings); Neb. Rev. Stat. §§ 43-101 to 43-165 (2008) (adoption proceedings); Neb. Rev. Stat. §§ 43-1226 to 43-1266 (2008) (Uniform Child Custody Jurisdiction and Enforcement Act).
21 Latham, 282 Neb. at 127-128.
22 Id. at 126 (citation omitted).
23 Id. at 128 (citation omitted).
25 Id. (citation omitted).
26 Id. at 129.
27 Id. (quoting Mullins v. Picklesimer, 317 S.W.2d 569, 575 (Ky. 2010)).
28 Id. (citation omitted).
29 Id. at 130-131.
30 Id. at 131 (quoting Custody of H.S.H.-K, 193 Wis. 2d 649, 533 N.W.2d 419 (1995)).
31 Id. at 132.
32 Id. at 131.
33 Id. at 122.
34 Id. at 133.
37 Id. at 135.