Nebraska SC: Lesbian Social Mother Has Parental Rights to Child She Helped Raise

The Nebraska Supreme Court ruled that non-biological parents can sue for custody and visitation.  Here’s the court’s opinion.

The case involved a relationship between two women, Teri Latham and Susan Rae Schwerdtfeger, who first got together back in 1985.  At some point they decided to have a child and, via in vitro fertilization, Schwerdtfeger became pregnant and gave birth in 2001.  Latham helped pay for everything – the IVF, medical care, costs of childbirth, etc.  She was there at the hospital and helped care for the boy once he was born.

By 2005 however, their relationship was on the rocks, and Latham moved out of their residence in 2006.  Schwerdtfeger remained with the little boy, identified by the court only as P.S.  Latham continued to have regular visitation with the boy until 2009, at which point things changed.

In testimony, Latham and Schwerdtfeger disagreed about just how much Latham continued to do to keep in contact with P.S.  Predictably, Latham said she did a lot but was often thwarted by Schwerdtfeger.  She seems to have paid support informally.  Schwerdtfeger says Latham made little effort and that P.S. didn’t like her and didn’t want to be with her.

Latham said that, beginning in 2007, Schwerdtfeger began to arbitrarily restrict her time with P.S.  By October 2009, her time with the boy had dwindled to next to nothing, and Latham said that was her former partner’s doing.  In short, Latham said that Schwerdtfeger was cutting her out of the boy’s life.

So she filed suit requesting visitation rights and custody.  But there was a big problem with that – in the eyes of the law, she had no relationship with P.S.  She wasn’t related to him by blood or adoption, and she wasn’t related by marriage since Nebraska doesn’t permit people of the same sex to marry.  And yet, she’d unquestionably spent a lot of time, energy, love, affection and money playing the part of parent.

So, at the trial court, Latham invoked the doctrine of in loco parentis (in the place of the parent).  That’s a common law doctrine that essentially holds that a person who’s done the deeds of a parent and acted parentally towards a child should have the rights of a parent.  But the trial court poured her out saying that the doctrine “didn’t apply” to Latham in this case.

But the Nebraska Supreme Court reversed that ruling.  It said that the doctrine of in loco parentis may well establish parental rights on behalf of Latham.  It sent the case back to the trial court to obtain evidence of Latham’s relationship to P.S.  If she can establish enough of a relationship with P.S., she’ll be granted some form of parental rights including the right to seek visitation and custody, as well as the obligation to pay support if visitation is granted.

[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.

So, for example, a stepparent who’s actively cared for a child may be ruled to have the rights and duties of a biological parent via the in loco parentis doctrine.  So may a grandparent, or indeed, anyone else whose ongoing behavior toward a child is that of a parent.

Moreover, what’s important in deciding whether a person has taken the actions necessary to qualify under the doctrine is his/her relationship with the child, not his/her relationship with the other adult.  So what the trial court now has to decide is whether Latham and P.S. have the type of relationship, the absence of which would be detrimental to P.S.’s interests.

The in loco parentis basis for standing recognizes 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. Thus, while it is presumed that a child”s best interest is served by maintaining the family”s privacy and autonomy, that presumption must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child”s eye a stature like that of a parent.

The Nebraska court’s reasoning makes sense to me.  Latham clearly established a parental relationship with P.S.  For the first five years of his life and for some time thereafter, she did all the things loving, hands-on parents do.  Doubtless, through all that, she and the boy developed a parent-child relationship that shouldn’t be tossed aside at the whim of his other parent.  Clearly, it’s in his interest to maintain ties with Latham.

That said, much time has passed.  It’s now 2011.  Latham hasn’t seen him nor he her, in two years, and their visits were few and far between for two years before that.  So they’ve had limited contact for about four of his 10 years.  By now a court may well find that, in fact, their relationship isn’t worth preserving.

Still, the principle stands and it has the potential to affect fathers.  Certainly gay men who raise children conceived and given birth to by another will be affected.  Likewise, a man defrauded by a mother will have his rights protected by the doctrine.  So, he may not be the father, but if he desires a continuing relationship with the child after he learns he’s not, he’ll be able to assert his rights in loco parentis irrespective of the mother’s wishes.

The term “the best interests of the child” is much used and much abused by courts nationwide.  Often it seems to be little more than a mantra judges intone hoping it has magical powers to confer benefits on children.  That’s because rulings judges make regarding child custody are often at odds with social science on what promotes healthy outcomes for kids.  Most importantly, social science shows no correlation between maternal custody and improved child outcomes, but year after year, 84% of primary and sole custody goes to mothers.

But this is a case in which the actual best interests of a child (as opposed to those presumed by judges) seems to have won out.  When children develop bonds with an adult who takes the role of parent over a significant period of time, those bonds shouldn’t be broken willy-nilly by the other adult.  Importantly, the adult who stands in loco parentis to the child should have his/her own parental rights that he/she can assert independently of the other adult.  Men and fathers know all too well how often the law takes their parental rights and places them in the hands of the mother of their child.

This Nebraska case does the opposite and should be applauded for doing so.

Thanks to Jim for the heads-up.

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