State Ex Rel. Combs v. O'NEAL
662 N.W.2d 231, 11 Neb. Ct. App. 890, 2003 Neb. App. LEXIS 146 (2003)
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Rule of Law:
A biological parent's superior right to child custody over a non-parent can be forfeited by indifference to the child's welfare over a long period. Such indifference is demonstrated when a parent consents to a non-parent assuming the obligations of the parental relationship, thereby allowing a de facto parent-child bond to form.
Facts:
- Brittanae M. Combs was born on February 23, 1988, and lived with her mother and maternal grandmother, Ronetta McKinney.
- Brittanae's mother died when she was 19 months old, and Brittanae continued to live with and be raised by Ronetta.
- Adrian S. O'Neal, Brittanae's biological father, maintained at least monthly contact with Brittanae but did not pay formal child support for the first nine years of her life, though he did buy her clothes occasionally.
- For over a decade, Ronetta assumed all primary caregiving responsibilities, forming a strong bond with Brittanae, who referred to Ronetta as 'Mom'.
- Adrian was largely content with this arrangement until a paternity action was initiated and he was ordered to pay child support when Brittanae was nine years old.
- At age 13, Brittanae testified that she had a close bond with Ronetta, wanted to continue living with her, and felt that moving to live with Adrian would be 'extremely stressful or unbearable'.
Procedural Posture:
- Ronetta McKinney was appointed as Brittanae's legal guardian by the county court for Douglas County.
- A paternity decree was later entered in the district court, establishing Adrian S. O'Neal as the father and ordering him to pay child support.
- Adrian filed a petition in county court to terminate Ronetta's guardianship, which the court denied.
- Adrian filed a second petition to terminate the guardianship, which was also denied by the county court after a trial.
- Simultaneously, Adrian filed an application in district court to modify the paternity decree, seeking custody of Brittanae.
- The district court (trial court) held a trial and found that Adrian had forfeited his parental rights, denying his application for custody and ordering that Brittanae remain in Ronetta's care.
- Adrian (appellant) appealed the district court's custody order to the Nebraska Court of Appeals, with Ronetta (appellee) as the responding party.
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Issue:
In a custody dispute between a biological father and a maternal grandmother who has raised the child since infancy, does the father forfeit his superior parental right to custody by being a non-custodial parent for many years, failing to provide consistent financial support, and consenting to the grandmother performing all day-to-day parental duties?
Opinions:
Majority - Per Curiam
Yes. A biological parent forfeits the superior right to custody by being content for many years to let a non-parent perform all parental duties, which results in the formation of a de facto parent-child relationship. The court reasoned that Adrian’s indifference to his parental duties over a long period—evidenced by his failure to pay support for nine years and his consent to Ronetta raising Brittanae—constituted a forfeiture of his parental preference right. Ronetta stood in loco parentis, and given the strong bond between her and Brittanae, disrupting that relationship was not in the child's best interests, which becomes the paramount consideration once forfeiture is established. The court found that Brittanae's own clearly expressed desires were a significant factor in determining her best interests.
Dissenting - Irwin, C.J.
No. A biological parent does not forfeit the superior right to custody unless there is evidence of substantial, continuous, and repeated neglect or long-term indifference, which was not present here. The dissent argued that the standard for forfeiture is extremely high and that Adrian's consistent monthly contact and occasional financial support, while not ideal, did not rise to the level of neglect or indifference required to terminate his parental preference. The trial court also erred by incorrectly concluding that the grandmother was not an 'unrelated third party' for the purpose of the parental preference doctrine. The fact that the grandmother stood in loco parentis is not a legally sufficient reason to supplant the rights of a fit biological parent who has not forfeited them.
Analysis:
This decision clarifies that 'parental forfeiture' is not limited to overt abuse or abandonment but can occur through long-term passivity and acquiescence to a third party raising one's child. It elevates the importance of the de facto parent-child relationship, suggesting that after a long period of such an arrangement, the 'child's best interests' standard can override the parental preference doctrine. The ruling provides a pathway for long-term caregivers, like grandparents, to gain legal custody over a biological parent who has been inconsistently involved. This may impact future custody disputes by encouraging courts to look beyond mere biological ties to the reality of the child’s established life and emotional bonds.
