Friday, September 30, 2005

Case Development: Parental Preference Doctrine Requires Custody to Biological Dad over Stepfather Who Had Raised Son for 12 Years

In an opinion strongly affirming the parental preference doctrine, the Nebraska Court of Appeals held that it was error to grant custody of a 13-year-old boy to the stepfather who had raised him rather than the biological father who had been "mostly absent" from the boy's life until Mother's death. The court held that “a court may not, in derogation of the superior right of a biological or adoptive parent, grant child custody to one who is not a biological or adoptive parent unless the biological or adoptive parent is unfit to have child custody or has legally lost the parental superior right in a child.  Parental forfeiture means 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.” 

State ex rel. Ephraim H. v. Jon P., 2005 Neb. App. LEXIS 231 (September 27, 2005)
Opinion on the web at http://court.nol.org/opinions/2005/september/sept27/a04-1488.htm (last visited September 30, 2005 bgf)

The case highlights the critical role temporary custody orders can have on final determinations of custody...

The court conceded that father had been “mostly absent” from the boy’s life until mother died and that the stepfather had a “father-son relationship with [Son] from a young age, which had continued and strengthened over the years.” Nevertheless, there was no basis for concluding that biological father had forfeited his rights, since he had paid child support and had “reentered [Son's] life at a critical time.  Son had resided with biological father for the year prior to the trial because of the trial court's finding that it was in Son’s best interests to do so.  Thus, the court concluded that “although [Father] may have been a "stranger" to [Son] at the time of the funeral, he certainly was not by the time of trial, which is the proper time at which the issue of whether [Father] had forfeited his superior right to custody should be determined.  One wonders whether the outcome would have been different had the trial court left Son with Stepfather. 

http://lawprofessors.typepad.com/family_law/2005/09/case_developmen.html

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