Advocacy for Nebraska Children With Gay and Lesbian Parents: a Call for the Best Interests of the Child to Be Paramount in the Case of Non-biological, Non-adoptive Parents

• Publication year: 2022

36 Creighton L. Rev. 3. ADVOCACY FOR NEBRASKA CHILDREN WITH GAY AND LESBIAN PARENTS: A CALL FOR THE BEST INTERESTS OF THE CHILD TO BE PARAMOUNT IN THE CASE OF NON-BIOLOGICAL, NON-ADOPTIVE PARENTS

Creighton Law Review

Vol. 36

ANGELA DUNNE TIRITILLI(fn*) SUSAN ANN KOENIG(fn**)

INTRODUCTION

With increasing frequency, family law practitioners in Nebraska are being called upon to represent gays and lesbians who are neither the biological nor adoptive parent of children with whom they have established parental relationships. The Nebraska Child Custody Jurisdiction Act (hereinafter referred to as the "NCCJA")(fn1) provides the statutory basis for the rights of these children to have these relationships protected through the custody proceedings under the Act. Through the application of the equitable doctrine of in loco parentis, courts can provide security for these children. This ensures that the best interests of the child are treated as paramount.

Gays and lesbians who have parented children to whom they have neither given birth nor adopted may seek representation after the end of a relationship or upon the death or disability of a partner. As in all cases involving parents, the nature of the relationship to the child can vary. In some situations the client may have been involved from the very decision of her partner to be artificially inseminated for the purposes of parenting a child from birth. In other cases, the couple may have been together only a short time, and both biological parents of the child may be active in the child's life. The ability of the courts to respond to a broad range of circumstances for children of non-biological/non-adoptive parents is essential if their best interests are to be guaranteed.

The time has come for Nebraska courts to abolish the parental preference doctrine, which gives a superior right to custody to the biological or adoptive parent, in favor of the best interests of the children test. By applying the best interests of the child standard as is done in dissolution, adoption and juvenile matters, courts can have greater power to meet the needs of children who are raised in non-traditional families. In order to be zealous advocates, attorneys for non-biological, non-adoptive parents must argue the application of the best interests of the child in all cases involving custody or visitation. Attorneys must utilize the NCCJA, urge the application of the doctrine of in loco parentis and the best interests of the child standard, and educate judges to eliminate any bias which may exist about the impact of sexual orientation on parenting.

This essay will explore Nebraska statutory schemes as recognizing rights for non-biological, non-adoptive parents. In doing so, this essay will review the statutes that specifically acknowledge the parent/child relationship. First, it will examine Nebraska statutes regarding: marriage and dissolution of marriage, paternity, guardianship, juvenile actions, adoption, and actions under the NCCJA. This essay will posit that non-biological, non-adoptive parents may utilize the NCCJA to request a custody determination be made in the best interests of a child. Second, this essay will then assess the equitable doctrines recognized in Nebraska to preserve and protect parent/child relationships when the parent may or may not be a biological or adoptive parent. This essay will urge that the in loco parentis doctrine should be favored in custody and visitation matters and the parental preference doctrine abolished.

Finally, this essay will extrapolate from the statutory review and equitable doctrine evaluation that the best interests of the child is always at the heart of any analytical framework in an action where custody or visitation is at issue. This essay will argue that the best interests of the child require that the sexual orientation of a non-biological, non-adoptive parent have no impact on the rights of that parent or a corresponding custody determination.

A REVIEW OF NEBRASKA STATUTES IMPACTING THE PROTECTION OF RELATIONSHIPS BETWEEN CHILDREN AND THEIR NON-BIOLOGICAL, NON-ADOPTIVE PARENTS.

The status of non-biological, non-adoptive parents in Nebraska is unclear under current statutes and recent case law. A review of Nebraska's statutory schemes regarding parents and children is necessary to first assess how a parent/child relationship may be legally established and under what circumstances a custody determination may be made. This evaluation will indicate whether non-biological, non-adoptive persons have rights or legal mechanisms available to protect and preserve their status as a parent. In doing so, this essay will review the statutes that specifically acknowledge the parent/child relationship. The question is whether under Nebraska law, a non-biological, non-adoptive person can be a legal parent.

For most practitioners and judges, the term "parent" generally refers to biological or adoptive parents. From legal and statutory definitions to legal theories regarding parents, these are most often the persons included as parent and are the persons most commonly referred to as parents. But as the make up of families diversifies and familial relationships continue to transform, the structure of knowledge of what defines a family must be systematically dismantled, starting first with the legal system itself. "Parent" as defined by Black's Law Dictionary is:

The lawful father or mother of someone . . . the term commonly includes (1) either the natural father or the natural mother of a child, (2) the adoptive father or adoptive mother of a child, (3) a child's putative blood parents who has expressly acknowledged paternity, and (4) an individual or agency whose status as guardian has been established by judicial decree. . .(fn2)

By traditional definition, non-biological, non-adoptive parents are not contemplated as persons who are parents prior to the entry of a court order determining their status as such.

Accordingly, Nebraska law was enacted by legislatures presuming that non-biological, non-adoptive parents should not be considered or regarded as parents. This is the inherent premise upon which the Nebraska statutes were enacted as each of these statutes specifically defines "parents" as a biological or adoptive parent, with the exception of the NCCJA, which is the focus of the statutory review.(fn3)

Family law practitioners in Nebraska must achieve clarity on how to protect the rights of children whose parents are non-biological or non-adoptive parents. It is naive to believe that persons in same-sex relationships are not parenting children, as it is estimated that the number of children in the United States being raised by at least one gay parent is between 1 million and 9 million.(fn4) The question that presents itself is if a same-sex relationship fails, how do we protect the best interests of children who have a relationship with a person who has parented them from birth, early childhood or adolescence? How can practitioners advocate to preserve relationships between children and their non-biological, non-adoptive parents whom the children rely on, receive comfort from, and hold close to their hearts?

First, this essay will examine the marriage and dissolution of marriage statutes, second, the paternity statutes and the juvenile code, next it will review the adoption laws and finally it will review the NCCJA. This evaluation will conclude that legal parenthood as defined under the statutes related to marriage, paternity, adoption and the juvenile actions, only recognizes biological or adoptive parents for the purposes of custody determinations and visitation. This essay will propose that non-biological, non-adoptive parents may utilize the NCCJA to request a custody determination be made in the best interests of a child.

DIVORCE AND MARRIAGE STATUTES PRECLUDE RECOGNITION OF SAME SEX RELATIONSHIPS

Rights for those who enjoy legally recognized parenthood can be enforced in actions involving dissolutions of marriage, paternity, adoption, neglect or abuse cases involving removing children from a home and terminating parental rights, and jurisdictional custody disputes.(fn5) The majority of these actions presume the parties involved to be either biological parents or adoptive parents.(fn6)

If one is a legal parent to a child, the relationship is statutorily protected and is afforded protection under the United States Constitution, as parents have fundamental rights within the guarantees of the Due Process Clause of the Fourteenth Amendment in the care, custody and control of their children.(fn7) This protection is largely due to the legal protection afforded to children born from a marriage, as the right to privacy protected by the Fourteenth Amendment of the United States Constitution includes a right to freedom of choice in marriage and family decisions.(fn8)

The Nebraska dissolution of marriage statutes most prevalently address the parent/child relationship and custody matters.(fn9) Marriage is the sine qua non for legal recognition of parenthood, as legitimacy of children is presumed in marriage.(fn10) To be legally married in Nebraska, the parties must solemnize their union.(fn11) To solemnize a union, the parties must solemnly declare that they take each other as husband and wife.(fn12) This presumes that only a man and a woman can be legally married.

On November 7...