Equitable Considerations for Families With Same-sex Parents:russell v. Bridgens, 647 N.w.2d 56 (2002), and the Use of the Doctrine Ofin Loco Parentis by Nebraska Courts

JurisdictionNebraska,United States
CitationVol. 83
Publication year2021

83 Nebraska L. Rev. 915. Equitable Considerations for Families with Same-Sex Parents:Russell v. Bridgens, 647 N.W.2d 56 (2002), and the Use of the Doctrine ofIn Loco Parentis by Nebraska Courts



Equitable Considerations for Families with Same-Sex Parents: Russell v. Bridgens, 647 N.W.2d 56 (2002), and the Use of the Doctrine of In Loco Parentis by Nebraska Courts

264 Neb. 217


I. Introduction ...................................................... 915
II. Background ....................................................... 918
A. Second-Parent Adoption Among the States ....................... 918
B. Facts and Opinions in Russell v. Bridgens ................... 921
III. Analysis ........................................................ 923
A. Other States' Application of Equitable Doctrines to
Issues Involving Same-Sex Families ............................ 923
B. The In Loco Parentis Doctrine in Nebraska ................... 926
C. Toward a Broad and Equitable Application of In
Loco Parentis in Nebraska Courts ............................ 927
IV. Conclusion ....................................................... 931


In recent decades, family as a social entity has metamorphosed into various forms, expanding the boundaries of its definition beyond those that existed traditionally. While it is critical for the law to respond to societal changes, the law--especially family law, intertwined as it is with local discretion and jurisdictional custom--often does so in a tentative and asymmetrical fashion among the states. Certainly,


state courts must give full faith and credit to judicial rulings of other states.(fn1) Beyond this constitutional mandate, however, state courts exercise the authority to interpret their own state laws. Furthermore, as courts of equity, state courts have long held authority over the persons and property of the state's children under their "general duty as parens patriae to protect persons who have no other rightful protector."(fn2) It is within these broad parameters that state courts function to ensure the fair and equitable disposition of cases involving families and children.

The Nebraska Supreme Court's opinion in Russell v. Bridgens(fn3) illustrates Nebraska's venture into the relatively uncharted territory of the legal relationships between same-sex parents and their children. Russell involved the appeal of a Nebraska lower court's ruling that a coparent adoption completed in Pennsylvania by a same-sex couple was invalid under Pennsylvania law.(fn4) Russell appealed the district court's ruling that granted summary judgment to Bridgens, Russell's former partner.(fn5) The lower court held that because the Pennsylvania court(fn6) did not have jurisdiction to grant a Pennsylvania coparent adoption,(fn7) the adoption decree was invalid, and therefore, Russell could not prevail on a petition to establish custody and support. The


Supreme Court of Nebraska reversed and remanded.(fn8) While the majority opinion reversed the district court's decision based on a procedural finding,(fn9) the concurring opinion focused on additional assignments of error made by the appellant and, in particular, discussed the doctrine of in loco parentis,(fn10) which allows a person to "`stand[] in the shoes' of the natural parent and assume[] the same rights and duties as such."(fn11) The concurring opinion in Russell provides some guidance to Nebraska courts as to the equitable doctrines that may be available under Nebraska law to substantiate rights, such as custody, visitation, and support, for individuals who have served as parents to children,(fn12) but who may not have secured, or been able to secure, a legal relationship with them through adoption.(fn13)

This Note will explore the law of second-parent adoption as it has developed among the states, the facts and opinions of Russell, and the doctrine of in loco parentis as applied by Nebraska and other state courts. In doing so, this Note will argue that, in light of the willingness of Russell's concurring judges to apply the doctrine of in locoparentis to custody disputes between separated same-sex partners, courts in Nebraska should follow the concurring judges' lead and not hesitate to apply the doctrine as needed on a case-by-case basis in order to respond to the current needs of families and to provide for the best interests of children.(fn14)



A. Second-Parent Adoption Among the States

Russell v. Bridgens provides an example of the how the Supreme Court of Nebraska has operated within a conceptual framework already established in the law in attempting to address the needs of same-sex couples and their children.(fn15) The issues involved in Russellare those that many courts in recent years have faced in response to the increasing number of same-sex couples who wish to parent children.(fn16) Those couples that decide to have families often face legal difficulties in providing health insurance and Social Security benefit coverage for their children, in securing inheritance rights, and in establishing the authority to consent for medical care.(fn17) Furthermore, in the event that such couples separate, they are forced to confront widely diverging state laws in the areas of custody, visitation, and child support--the overlapping of which often produces results that are unjust for the parties and that fail to provide for the best interests of the children involved.(fn18) In some jurisdictions, one option available to same-sex couples who wish to avoid such problems by establishing a legal parent-child relationship with their child is coparent adoption, or as it is more commonly termed, second-parent adoption. Like stepparent adoption,(fn19) second-parent adoption allows an individual to adopt her or his partner's biological or adopted child without first terminating the partner's legal parental status.(fn20)


Only a few months before its decision in Russell,(fn21) the Nebraska Supreme Court decided In re Adoption of Luke(fn22) and found that an unmarried partner of an individual already possessing parental rights over a child could not adopt that child without the parent that possesses parental rights first relinquishing those rights.(fn23) Specifically, the Court stated that "with the exception of the stepparent adoption, the parent or parents possessing existing parental rights must relinquish the child before `any minor child may be adopted by any adult person or persons.'"(fn24) Other states have wrestled with the same question: do the state's adoption statutes allow second-parent adoption by persons other than stepparents? The import of a given state's answer is substantial, since the resolution of this issue inevitably establishes the foundation for defining the legal relationships between same-sex couples and their children in that state.

In response to the above question, most state courts that have addressed the issue interpret their own adoption statutes liberally to allow same-sex couples to adopt their partner's biological or adoptive children.(fn25) These courts often rely on their broad discretion in providing for the best interests of the child.(fn26) However, a few state courts,


like Nebraska's, have construed their state's adoption statutes narrowly and found that they preclude the possibility of second-parent adoption by any person other than stepparents.(fn27) Moreover, because same-sex couples have so far been precluded from marrying in Nebraska,(fn28) they are also unable to invoke the stepparent exception. Currently, only a few states have chosen to enact legislation to either explicitly allow or preclude second-parent adoptions by same-sex couples.(fn29)

Although the Nebraska Supreme Court denied the possibility of effecting second-parent adoptions in Luke, many questions remain. One such question is whether a Nebraska court would give full faith and credit to second-parent adoptions completed in sister states.(fn30) Russellindicates that the answer is yes, but leaves open the possibility that a litigant might collaterally attack a foreign adoption decree for lack of jurisdiction.(fn31) Another important question remaining after both Luke


and Russell is what equitable remedies exist in Nebraska that might secure rights such as custody and visitation for individuals who have in fact parented a child but who are unable to establish a legal relationship through adoption? The concurring opinion in Russell, through its discussion of the doctrine of in loco parentis, provides some guidance in addressing this issue.

B. Facts and Opinions in Russell v. Bridgens

At the time the Pennsylvania coparent adoption took place, Russell and Bridgens were a same-sex couple who lived together and wanted to adopt a child.(fn32)In 1996, Bridgens adopted Joseph Noble Bridgens in a court in Pennsylvania, the state where Joseph was born. Then in 1997, both Bridgens and Russell adopted Joseph through a "co-parent adoption" in the Court of Common Pleas of Philadelphia County.(fn33)The family lived together in Germany until the couple separated in 1999, when Russell and Joseph moved back to the United States. In 2000, Russell filed a petition to establish custody and support for Joseph in the District Court of Douglas County, Nebraska.(fn34)In response, Bridgens filed a motion for summary judgment, alleging that the Pennsylvania coparent adoption was invalid.(fn35)Accepting Bridgens' argument that the Pennsylvania adoption could be collaterally attacked in Nebraska for lack of subject matter jurisdiction under Pennsylvania law, the district court granted Bridgens' motion and dismissed Russell's complaint.(fn36)In reaching its decision, the district court did not employ an analysis of the child's best interests; nor did it address the pressing issues of...

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