With little fanfare, on Friday, the Nebraska Supreme Court decided Latham v. Schwerdtfeger, S-10-742. In that case, Latham and Schwerdtfeger were a same-sex couple that decided to have a child together. In 2001 Schwerdtfeger became pregnant by in vitro fertilization and Schwerdtfeger and Latham began raising their son together until 2006 when Latham moved out of the home. For some period of time Schwerdtfeger still allowed Latham to visit their son. However in 2009, Schwerdtfeger substantially reduced Latham’s visitation.
Under traditional Nebraska parenting statutes, Latham would be out of luck in enforcing her “parenting” rights to her son. She is not her son’s biological parent. She did not and could not legally adopt her son. She did not and could not marry her partner, giving her the rights of a divorcing parent.
However, the Nebraska Supreme Court determined that this was not a barrier to Latham’s visitation rights with her son. The Supreme Court held that Lathan stood in loco parentis to her son which entitled her to the rights of a biological parent. The court noted:
The in loco parentis basis for standing recognizes that 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,… any argument that a nonparent cannot seek custody or visitation because to do so would interfere with a parent’s rights to parent is unavailing where the evidence shows that the primary consideration, the best interests of the child, are served by recognizing the standing of a nonparent to seek custody or visitation.
The court explained that one standing in loco parentis has put himself or herself in the situation of the lawful parent by assuming the obligations incident to the parental relationship. Thus, where one has put herself in that position, she has the right to enforce that parental relationship.
This decision should at last give some comfort to same-sex couples considering becoming parents in Nebraska. In this situation the traditional, “lawful” parent will not be able to cut-off the other parent from the children merely because the relationship with their partner has ended.
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