Nebraska Supreme Court rules nonbio mom entitled to hearing on custody and visitation

The facts are sad but common. Lesbian couple, Teri Latham and Susan Rae Schwerdtfeger, were together for 20 years and had a child born to Susan using donor semen about 15 years into their relationship, in 2001. They cared for the child as co-parents. In 2006 they split up. The child stayed with Susan but Teri claimed that she continued to see her son three to five times a week and to support him financially. According to Teri, in 2007, Susan began to cut down on her visitation time, and, in December 2009, Teri filed a petition for custody and visitation.

Although the trial judge initially gave her 30 minutes of visitation three times a week, six months later the judge dismissed Teri's case without a trial (although it appears the judge talked to the child in chambers), ruling that the doctrine of in loco parentis did not apply to her case. Teri appealed, and last Friday the Nebraska Supreme Court ruled in her favor. Teri now has the right to a trial.

The court determined that no statute gave Teri standing to bring her action but that the common law doctrine of in loco parentis did give her standing. Previous Nebraska court rulings had used that doctrine to order both visitation and child support for a stepparent and to grant a grandparent custody. "The Legislature did not intend that statutory authority be the exclusive basis of obtaining court-ordered visitation," the Latham court held. "If Latham can establish that she has met the standard...for granting relief to one who stands in loco parentis, there is no reason to exclude this case from the benefits of the doctrine afforded to stepparents and grandparents who have created similar relationships with a minor." The court cited rulings in lesbian split-up custody cases from numerous other states, including Pennsylvania, Wisconsin, Kentucky, Arkansas, and Washington; it did not acknowledge the states that have denied nonbio moms the ability to obtain custody or visitation.

The court continued:

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. Application of the doctrine protects the family from allowing intervention by individuals who have not established an intimate relationship with the child while at the same time affording rights to a person who has established an intimate parent-like relationship with a child, the termination of which would not be in the best interests of the child.

Susan disputed a number of facts that Teri asserted, primarily after the couple split up. The case, therefore, returns to the lower court for a trial. And here the Nebraska Supreme Court opinion gets a bit murky. Although there is lots of talk about determining whether it is in the child's best interests for Teri to receive visitation, the court also acknowledges the factual dispute about the time Teri spend with the child after the couple split up and the nature of Teri's relationship with the child. This makes it seems as though the trial judge could believe Susan's version of the facts and determine that after the break up there was no in loco parentis relationship and then not consider whether visitation is in the child's best interests. But the court also notes that the diminished visitation in the two years before the case was filed reflected Susan's decision, not a lack of desire on Teri's part to be in the child's life. Presumably this means the trial court has to take into account Susan's obstruction of Teri's relationship with the child.

Even on a pure "best interests" basis, Teri faces a problem when the case returns to the lower court. There is no evidence she has seen her child for more than a year. There was little contact for some time before that. What's in this child's best interests at this moment will look different from the way it would have looked when the couple first split up. To that extent, Teri may fare less well than will future nonbio moms in Nebraska. But Teri will always be one of those "pioneering parents" whose contribution to LGBT family law is being honored at this year's Lavender Law conference.

One other comment, which I've made before. So-called "gay friendly" states are not necessarily good states for respecting the families formed by same-sex couples having children. And so-called "not gay friendly" states can get it just right. For other examples, compare New York and Kentucky.