Whilde v. Whilde , 298 Neb. 473 ( 2017 )


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  • Nebraska Supreme Court Online Library
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    03/16/2018 01:12 AM CDT
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    298 Nebraska R eports
    WHILDE v. WHILDE
    Cite as 
    298 Neb. 473
    H annah Whilde, appellee, v.
    M argaret Whilde, appellant.
    ___ N.W.2d ___
    Filed December 22, 2017.   No. S-17-045.
    1.	 Child Custody: Appeal and Error. Child custody determinations are
    matters initially entrusted to the discretion of the trial court, and
    although reviewed de novo on the record, the trial court’s determination
    will normally be affirmed absent an abuse of discretion.
    2.	 Parent and Child. During a period in which an individual stands in
    loco parentis to a child, he or she has put himself or herself in the
    situation of a lawful parent by assuming the obligations incident to the
    parental relationship, without going through the formalities necessary to
    a legal adoption, and the rights, duties, and liabilities of such person are
    the same as those of the lawful parent.
    3.	 ____. Because in loco parentis status is transitory, once the person
    alleged to be in loco parentis no longer discharges all duties incident
    to the parental relationship, the person is no longer in loco parentis.
    Termination of the in loco parentis relationship also terminates the cor-
    responding rights and responsibilities afforded thereby.
    4.	 Child Custody: Modification of Decree: Proof. Ordinarily, custody
    of a minor child will not be modified unless there has been a material
    change in circumstances showing that the custodial parent is unfit or that
    the best interests of the child require such action. First, the party seeking
    modification must show a material change in circumstances, occurring
    after the entry of the previous custody order and affecting the best inter-
    ests of the child. Next, the party seeking modification must prove that
    changing the child’s custody is in the child’s best interests.
    Appeal from the District Court for Otoe County: David K.
    A rterburn, Judge. Affirmed.
    Anthony W. Liakos, of Govier, Katskee, Suing & Maxell,
    P.C., L.L.O., for appellant.
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    WHILDE v. WHILDE
    Cite as 
    298 Neb. 473
    Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
    L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
    R iedmann, Judge.
    Miller-Lerman, J.
    NATURE OF CASE
    Margaret Whilde appeals the order of the district court for
    Otoe County, Nebraska, which modified a prior child custody
    order filed by a Texas court, awarded sole legal and physi-
    cal custody of the child to Hannah Whilde, and ordered that
    Margaret be granted no further rights of custody or visitation
    with regard to the child. We affirm the district court’s order.
    STATEMENT OF FACTS
    Margaret and Hannah met in 1999 and became involved in
    a romantic relationship during which they lived together. They
    lived in Mexico when they first met, but they later moved to
    Lincoln, Nebraska, for a time before they moved to Austin,
    Texas, in 2003. After moving to Texas, both Margaret and
    Hannah had their last names legally changed to “Whilde.” The
    parties disputed whether they had a commitment ceremony
    soon after they met in 1999 and whether they considered them-
    selves to be married, but the record indicates that the two had
    never been legally married.
    In January 2010, Hannah gave birth to a baby girl. The child
    had been conceived by artificial insemination, and any paren-
    tal rights of the biological father were terminated by a court
    in Texas. Margaret and Hannah were still in a relationship
    and living together at the time the child was born. Although
    the parties dispute whether there was an intent on the part of
    either Margaret or Hannah for Margaret to be considered a
    parent to the child, and although Margaret testified that she
    planned to adopt the child, Margaret conceded that she had not
    formally adopted the child.
    The relationship between Margaret and Hannah began to
    decline after the child’s birth. Although the parties dispute
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    the reasons and the circumstances surrounding their separa-
    tion, in November 2011, Hannah moved back to her parents’
    home in Otoe County and she took the child with her. Soon
    after Hannah left Texas, Margaret filed an action in the dis-
    trict court for Travis County, Texas, in which she sought to
    have determined her legal rights with respect to the child. The
    Texas court entered an initial order in which it determined that
    Margaret had legal standing to assert rights with respect to
    the child and set forth certain rights and duties that Margaret
    and Hannah would share as “joint managing conservators” of
    the child.
    After further proceedings and hearings, the Texas court
    filed an additional order on September 27, 2012. The order
    was denominated “Temporary Orders,” and in the order, the
    court appointed Hannah as “Temporary Parent Sole Managing
    Conservator” and Margaret as “Temporary Non-Parent
    Possessory Conservator” of the child. The order then set forth
    certain rights and duties that each party would have during her
    periods of possession of the child, certain rights and duties
    that each party would have at all times as conservator, and
    certain rights that Hannah would have exclusively. The rights
    that Hannah was granted exclusively included, inter alia, the
    right to direct the moral and religious training of the child, the
    right to designate the primary residence of the child without
    geographic restriction, and the right to represent the child in
    legal actions and to make other decisions of substantial legal
    significance concerning the child.
    The court then set forth terms for each party’s periods
    of possession of the child. The order provided that Hannah
    would have possession of the child at all times other than
    times specified in the order when Margaret would have pos-
    session. The order generally provided that Margaret would
    have possession for one 4-day period each month and that
    Margaret’s period of possession would increase to include
    certain specified periods after the child reached the age of 3.
    With regard to support, the order provided that neither party
    was obligated to pay direct child support to the other and that,
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    instead, each party would be responsible for expenses that
    arose during her period of possession. Margaret was ordered
    to provide health insurance for the child beginning November
    24, 2012. The order stated that the temporary orders would
    “continue in force until the signing of the final order or until
    further order of this Court.” It appears that no further orders
    were filed by the Texas court until after the present action was
    filed in Nebraska.
    On June 6, 2014, Hannah filed in the district court for
    Otoe County an application to register the Texas court’s
    September 27, 2012, order pursuant to the Uniform Child
    Custody Jurisdiction and Enforcement Act, Neb. Rev. Stat.
    §§ 43-1226 through 43-1266 (Reissue 2016). She requested
    that the Nebraska court set aside the Texas order and modify
    the custody of the child in accordance with Nebraska law.
    Hannah alleged that she and the child had lived in Nebraska
    City, Nebraska, since November 2011 and that Margaret
    was currently living in Auburn, Nebraska, and had lived in
    Nebraska for more than 1 year. Hannah alleged that she was
    the biological mother of the child and that the biological
    father had been denied any parental rights by the Texas court.
    Hannah further alleged that no enforcement action had been
    taken with regard to the Texas court order since its entry and
    that no effort had been taken to bring about entry of a final
    order. Hannah alleged that it would be in the best interests of
    the child that Hannah be given sole legal and physical custody
    of the child and that Margaret should have no rights to custody
    or visitation of the child.
    In her response, Margaret admitted much of the allegations
    in Hannah’s complaint, but she requested that the complaint to
    modify the Texas order be dismissed and, to the extent Hannah
    requested a suspension of Margaret’s visitations rights, that
    such request be denied.
    Margaret moved back to Texas in late June 2014, shortly
    after Hannah filed this action. It appears that Margaret’s con-
    tact with the child was minimal thereafter. Hannah presented
    evidence at the trial in this matter that after Margaret moved
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    back to Texas, Margaret had experienced significant mental
    health issues resulting in hospitalization, including time in a
    long-term psychiatric hospital in New York.
    In December 2015, Hannah filed a motion in this action
    seeking to suspend Margaret’s contact with the child because
    of Margaret’s mental health issues. In February 2016, the
    district court preliminarily ordered that there be no contact
    between Margaret and the child, pending the court’s determi-
    nation of Hannah’s motion. In a March 10, 2016, order, the
    court provided that pending trial in this matter, Margaret would
    be allowed 15 minutes each week of supervised contact with
    the child by telephone or “[S]kype.” On March 11, Margaret
    filed an application for order to show cause, in which she
    alleged that Hannah had prevented her from exercising the
    visitation ordered in the March 10 order; Margaret requested
    an order for Hannah to show cause why she should not be held
    in contempt for failing to allow the ordered visitation. In an
    order entered March 21, the court addressed various matters,
    including the following:
    Visitation issue is further addressed by the Court.
    Court finds that Defendant [Margaret] has not pro-
    vided records of her current treatment as previously
    ordered. Court finds that said records from the New York
    Psychiatric Institute shall be provided to counsel for
    Plaintiff [Hannah] on or before April 1, 2016. Fifteen-
    minute weekly Skype visitation shall recommence on
    April 6, 2016, at 7:00 p.m[.] Central Time. Weekly
    Skype visitation shall take place every Wednesday at
    7:00 p.m. Central Time for 15 minutes and may be
    supervised by a person acceptable to Plaintiff. Said
    supervisor shall have the ability to terminate a Skype
    visitation if Defendant engages in any inappropriate con-
    versation with the child.
    No order to show cause pursuant to contempt action
    filed by Defendant will be entered based on the foregoing
    order and based on Defendant’s unavailability to be pres-
    ent to prosecute such a contempt action.
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    In July 2016, the district court communicated with the
    Texas court regarding jurisdiction under the Uniform Child
    Custody Jurisdiction and Enforcement Act. As a result of such
    communication, the Texas court relinquished its jurisdiction of
    the case, finding that Nebraska had become the home state of
    the child. The district court in Nebraska also found that juris-
    diction of the case under the act was in Nebraska.
    Trial in the matter was held on August 2 and 3, 2016, and
    the court issued its opinion and order on December 16. This
    appeal is taken from the December 16 order. In the order, the
    court set forth much of the history recounted above. The court
    noted that the parties’ testimony regarding their relationship
    and Margaret’s relationship with the child varied widely. The
    court noted Hannah’s testimony to the effect that their rela-
    tionship began to deteriorate after Hannah became pregnant.
    Hannah testified that Margaret’s behavior became erratic and
    that she became afraid to leave the child alone with Margaret.
    Hannah testified that Margaret did not spend significant time
    with the child and that Hannah was the primary caregiver.
    Hannah testified that Margaret began to cut Hannah off from
    contact with others and that eventually Hannah decided
    she needed to remove herself and the child from what she
    described as a “dysfunctional environment.” Hannah obtained
    the assistance of her sister to leave Texas and return with the
    child to Nebraska.
    Contrary to Hannah’s testimony, Margaret testified that she
    was actively involved in the child’s care and that she provided
    financial support by working outside the home while Hannah
    stayed at home with the child. She testified that she had initi-
    ated proceedings to adopt the child and that a final hearing
    had been scheduled for shortly after the day Hannah moved
    herself and the child out of their home. Margaret testified that
    she was shocked when she learned that Hannah had moved out
    with the child. Shortly after they moved, Margaret filed the
    action in Texas to secure her rights with regard to the child,
    and she moved to Nebraska in April 2013 to better exercise
    her rights of visitation.
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    It appears that the parties generally followed the visitation
    order after Margaret moved to Nebraska. But Hannah decided
    to curtail Margaret’s visitation after an incident in May 2014,
    when Hannah asserted that Margaret kept the child beyond her
    allotted time. Hannah called the police to remove the child from
    Margaret’s home. As a result of the police visit to Margaret’s
    home, Hannah learned that the condition of Margaret’s home
    was such that Hannah did not think it an appropriate place for
    the child. Hannah presented witness testimony and other evi-
    dence to the effect that Margaret maintained a home that was
    extremely dirty and unsafe for the child. After the May 2014
    incident, Hannah filed for and obtained a harassment protec-
    tion order against Margaret, and she filed the present action to
    modify custody.
    Hannah also presented evidence at the trial regarding
    Margaret’s mental health issues after Margaret returned to
    Texas in 2014. Margaret generally acknowledged such mental
    health issues, but she presented evidence to support her conten-
    tion that she had undergone treatment and at the time of trial
    was capable of caring for the child.
    The district court in its December 16, 2016, order stated
    that the evidence showed that with regard to financial support,
    Margaret had provided the majority of support while Hannah
    and the child lived with her in Texas. However, after Hannah
    and the child left, Margaret’s financial support had been lim-
    ited to support provided during her visitations in 2013 and
    2014, and after Margaret returned to Texas in 2014, she had
    provided only occasional gifts.
    In determining custody issues, the district court first con-
    sidered the applicability of Texas law and the effect of the
    September 27, 2012, order entered by the Texas court. The
    district court determined that because the child and both par-
    ties had lived in Nebraska for over 1 year before this action
    was filed, Nebraska law applied and controlled whatever legal
    rights the parties might have. Regarding the applicability of
    the Texas order, the district court stated that by its terms, the
    order was temporary and was not contemplated to be a final
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    order. However, the district court determined that the Texas
    order was the operative order except to the extent modified by
    the district court.
    The court therefore considered the effect of the Texas court’s
    determination that Margaret held the status of a “temporary
    non-parent possessory conservator.” The court noted that there
    was not a direct counterpart to such status under Nebraska
    law. However, the court determined that such status under
    Texas law was most comparable to the concept of an in loco
    parentis relationship under Nebraska law as set forth in cases
    such as Latham v. Schwerdtfeger, 
    282 Neb. 121
    , 
    802 N.W.2d 66
    (2011).
    The district court determined that the evidence in this case
    established that a significant relationship existed between
    Margaret and the child, from the child’s birth in January 2010
    until Hannah and the child moved to Nebraska in November
    2011. The court therefore acknowledged that an in loco paren-
    tis relationship “at one time did exist” between Margaret and
    the child. The court noted, however, that under Nebraska law,
    the establishment of an in loco parentis relationship does not
    forever grant parental rights to a nonbiological and nonadop-
    tive parent and that once a person alleged to be in loco parentis
    no longer discharges all the duties incident to the parental rela-
    tionship, the person is no longer in loco parentis.
    The court determined that in the present case, the in loco
    parentis relationship that had once existed between Margaret
    and the child had ceased in the years after Margaret moved
    back to Texas in June 2014. The court recognized that in May
    2014, Hannah had unilaterally cut off Margaret’s access to
    the child, but the court determined that Hannah had legiti-
    mate reasons for doing so. The court noted evidence that
    “Margaret’s mental health quickly deteriorated, resulting in
    approximately two years of unstable living conditions and
    repeated hospitalizations.” The court recognized that at the
    time of the trial, Margaret appeared “to have regained much
    of what she has lost” and that she “was articulate in her pre-
    sentation and has regained employment and a more stable
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    living environment.” The court stated that the question, how-
    ever, was whether in the course of those 2 years the in loco
    parentis relationship had been severed; the court determined
    that it had.
    The court concluded that “the in loco parentis relationship
    that [Margaret] previously enjoyed has been severed largely
    through her own failings as a care provider and extended his-
    tory of mental instability.” The court found that the child’s
    best interests would not be served by any further court-ordered
    contact between Margaret and the child. The court further
    found that Hannah had established a safe and secure home
    for the child. The court concluded that a material change
    of circumstances existed requiring the modification of the
    Texas court’s September 27, 2012, order. The court there-
    fore awarded sole legal and physical custody of the child to
    Hannah. The court ordered that Margaret was granted no rights
    of custody and visitation with the child and that she had no
    further obligation to support the child.
    Margaret appeals the district court’s December 16, 2016,
    order.
    ASSIGNMENTS OF ERROR
    Margaret claims that the district court erred when it (1)
    found that her in loco parentis relationship with the child had
    been severed, (2) found that such relationship had been severed
    as a result of events that had occurred in Margaret’s life, and
    (3) granted Margaret no rights of custody or visitation with the
    child. Margaret also claims that the district court abused its dis-
    cretion when it allegedly suspended contact between Margaret
    and the child as a discovery sanction.
    STANDARD OF REVIEW
    [1] Child custody determinations are matters initially
    entrusted to the discretion of the trial court, and although
    reviewed de novo on the record, the trial court’s determina-
    tion will normally be affirmed absent an abuse of discretion.
    Windham v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016).
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    ANALYSIS
    Court Did Not Suspend
    Margaret’s Visitation as
    a Discovery Sanction.
    We first address Margaret’s claim that the district court
    abused its discretion because it suspended contact between
    Margaret and the child as a discovery sanction. Margaret
    argues that in the order filed March 21, 2016, the court made
    her continued visitation with the child contingent upon her
    providing Hannah with copies of her mental health records;
    she asserts that this order was an inappropriate sanction for
    her failure to comply with a discovery request. In response,
    Hannah contends that the court did not limit Margaret’s visita-
    tion as a discovery sanction but instead did so to protect the
    child’s best interests pending a determination of Margaret’s
    mental health status.
    We do not agree with Margaret’s characterization of the
    order, and we reject this assignment of error. As recounted
    above, Margaret’s mental health status became an issue in
    these proceedings, and in December 2015, Hannah filed a
    motion seeking to suspend Margaret’s contact with the child.
    In response to Hannah’s motion, the district court in February
    2016 entered a preliminary order that there be no contact
    between Margaret and the child, pending the court’s determi-
    nation of Hannah’s motion. In a March 10, 2016, order, the
    court provided that pending trial in this matter, Margaret would
    be allowed 15 minutes each week of supervised contact with
    the child by telephone or Skype. Shortly thereafter, Margaret
    alleged that Hannah had prevented her from exercising the
    visitation ordered in the March 10 order; Margaret sought
    to have Hannah held in contempt for failing to allow the
    ordered visitation.
    In the March 21, 2016, order, the court addressed these and
    other matters. The court noted that Margaret had not provided
    certain treatment records as had been previously ordered. So
    the court ordered Margaret to provide the records to Hannah’s
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    counsel on or before April 1. The court went on to order that
    Margaret’s weekly Skype visitations with the child would
    recommence on April 6 and continue weekly thereafter. The
    court stated that based in part on “the foregoing order,” it
    would not enter an order to show cause as sought in the con-
    tempt action filed by Margaret.
    We do not read the order of March 21, 2016, as imposing a
    sanction on Margaret for her failure to comply with a discov-
    ery order. Instead, we read the order as addressing Margaret’s
    failure by setting a specific date—April 1—by which she was
    ordered to provide the records that were the subject of the
    prior order. Then, as a separate matter, the court responded to
    Margaret’s request that Hannah be held in contempt for failing
    to comply with the order regarding Margaret’s Skype visitation
    with the child. The court granted Margaret relief by ordering
    such visitation to recommence on April 6.
    Although the court addressed both the discovery issue and
    the visitation issue in the same order, we do not read the March
    21, 2016, order as connecting the two issues in the manner
    alleged by Margaret. The court did not suspend Margaret’s vis-
    itation as a sanction for her failure to comply with the earlier
    discovery order. Instead, the court set specific dates by which
    each party would comply with previous orders—Margaret was
    to comply with the discovery order by April 1, and Hannah
    was to comply with the visitation order beginning April 6.
    Rather than suspending Margaret’s visitation, the court ordered
    visitation to resume. Also, although Margaret was ordered to
    provide the mental health records on a date prior to the date
    visitation was ordered to resume, the court did not condition
    the resumption of visitation on Margaret’s compliance with the
    order to provide records.
    We do not find that the court suspended Margret’s visita-
    tion as a discovery sanction, and we therefore find no merit
    to the claim the court abused its discretion by imposing such
    a sanction.
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    District Court Did Not Err When It Determined
    That Court-Ordered Visitation With
    Margaret Was No Longer in
    the Child’s Best Interests.
    Margaret’s remaining assignments of error are directed at
    the district court’s determinations regarding her in loco paren-
    tis status with respect to the child and its ultimate conclusion
    that she was no longer entitled to rights of custody and visi-
    tation with the child. We find no error in the district court’s
    determinations and conclusions with regard to Margaret’s
    rights of custody and visitation.
    We note first that Margaret does not appear to take issue
    with the district court’s conclusion that her legal status as
    determined in the Texas court’s order was comparable to in
    loco parentis status under Nebraska jurisprudence. We find
    no error in this determination or in the district court’s deter-
    mination that based on the Texas order and the evidence
    regarding the time while the child was living in Texas, at
    one time, Margaret had in loco parentis status with respect to
    the child.
    [2] We have recognized the doctrine of in loco parentis
    in child custody and visitation cases wherein we have stated
    that during a period in which an individual stands in loco
    parentis to a child, he or she has put himself or herself in
    the situation of a lawful parent by assuming the obligations
    incident to the parental relationship, without going through
    the formalities necessary to a legal adoption, and the rights,
    duties, and liabilities of such person are the same as those
    of the lawful parent. Windham v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016); Latham v. Schwerdtfeger, 
    282 Neb. 121
    ,
    
    802 N.W.2d 66
    (2011); Weinand v. Weinand, 
    260 Neb. 146
    ,
    
    616 N.W.2d 1
    (2000). In the order it filed on September 27,
    2012, the Texas court appointed Margaret as “Temporary Non-
    Parent Possessory Conservator,” while it appointed Hannah as
    “Temporary Parent Sole Managing Conservator.” The court
    set forth certain rights and duties that each party would have
    during her periods of possession of the child, certain rights
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    and duties that each party would have at all times as conser-
    vator, and certain rights that Hannah would have exclusively.
    As we read the Texas order, we agree with the district court’s
    conclusion in this case that the rights Margaret was given
    by the Texas court’s order were equivalent to the rights one
    might be awarded based on in loco parentis status under
    Nebraska law. By denominating Margaret as a “Non-Parent
    Possessory Conservator,” the Texas court appeared to recog-
    nize that although Margaret was not a biological parent to the
    child and she had not gone through the formalities necessary
    to legally adopt the child, Margaret had put herself in the situ-
    ation of a lawful parent by assuming the obligations incident
    to the parental relationship and that she was therefore entitled
    to certain rights of “possession” and rights as a “conservator,”
    which rights appear to be similar to rights of custody and visi-
    tation under Nebraska law.
    In addition to agreeing with the district court’s conclusion
    that the rights Margaret was granted under the Texas order
    were similar to rights one might be awarded as a result of in
    loco parentis status under Nebraska law, we also agree with
    the district court’s conclusion, based on evidence provided
    in the present proceeding, that at the time the Texas order
    was filed, Margaret had what would be considered an in
    loco parentis relationship with the child under Nebraska law.
    Evidence presented at the trial in this proceeding indicates that
    from the child’s birth in January 2010 until the time Hannah
    and the child left Texas in November 2011, Margaret had
    assumed obligations with respect to the child that were of the
    sort that are incident to the parental relationship. Therefore, in
    the present proceeding in Nebraska, the district court correctly
    concluded that at one time, Margaret had in loco parentis sta-
    tus with respect to the child.
    Margaret does not dispute this finding; instead, Margaret
    claims that the district court erred when it determined that
    her in loco parentis status had been severed as a result of her
    actions and when it concluded that continued custody and
    visitation with Margaret were not in the child’s best interests.
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    As set forth below, we conclude that the district court did not
    err in these respects.
    Although in past cases we have recognized that in loco
    parentis status may entitle a party to certain rights of custody
    and visitation, we have recognized that in loco parentis status
    is not equivalent to status as a parent and does not entitle a
    person to all the same rights that a legal parent would enjoy.
    See Windham v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016). In Windham v. Griffin, we reasoned that “unlike bio-
    logical and adoptive parenthood, the status of in loco parentis
    is temporary, flexible, and capable of being both suspended
    and reinstated” and that therefore “an individual standing in
    loco parentis, which is temporary in nature, is not the func-
    tional equivalent of a lawful parent for all purposes or in all
    
    contexts.” 295 Neb. at 286
    , 887 N.W.2d at 715-16.
    We have further explained that “in loco parentis is a
    ­common-law doctrine that gives standing to a nonparent to
    exercise the rights of a natural parent when the evidence
    shows that the nonparent’s exercise of such rights is in the
    child’s best interests.” In re Guardianship of Brydon P.,
    
    286 Neb. 661
    , 673, 
    838 N.W.2d 262
    , 271 (2013). In In re
    Guardianship of Brydon P., we recognized that in loco paren-
    tis is a standing doctrine and that in loco parentis status is
    transitory; we held that the trial court in that case did not err
    when it rejected a child’s grandmother’s request for perma-
    nent parental status under the doctrine of in loco parentis.
    Therefore, under our precedent, in loco parentis is not a per-
    manent status; its presence, however, establishes one’s stand-
    ing to seek rights of custody and visitation at a specific time
    and in a specific proceeding.
    [3] Because in loco parentis status is transitory and not per-
    manent, it may be lost. We have noted that application of the
    in loco parentis doctrine “depends upon the circumstances in
    existence when the nonparent claims a child’s best interests
    lie in allowing him or her to exercise parental rights.” 
    Id. at 674,
    838 N.W.2d at 272. But because in loco parentis sta-
    tus is transitory, we have specifically stated that “[o]nce the
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    person alleged to be in loco parentis no longer discharges all
    duties incident to the parental relationship, the person is no
    longer in loco parentis” and that “[t]ermination of the in loco
    parentis relationship also terminates the corresponding rights
    and responsibilities afforded thereby.” In re Interest of Destiny
    S., 
    263 Neb. 255
    , 261, 
    639 N.W.2d 400
    , 406 (2002).
    The understanding that in loco parentis status is a transitory
    status relevant to one’s standing to seek custody and visitation
    informs our review of the district court’s decision in this case.
    Margaret’s standing in the present action was not challenged.
    At the time Hannah filed this action in the Nebraska district
    court, the Texas order granting Margaret certain rights with
    regard to the child was still in effect. Therefore, it was clear
    that Margaret had an interest and standing in this action, and
    she did not need to establish standing by showing that she had
    in loco parentis status.
    [4] Hannah filed the present action as a request for modifi-
    cation of the custody provisions of the Texas order. Ordinarily,
    custody of a minor child will not be modified unless there
    has been a material change in circumstances showing that
    the custodial parent is unfit or that the best interests of the
    child require such action. Hopkins v. Hopkins, 
    294 Neb. 417
    ,
    
    883 N.W.2d 363
    (2016). First, the party seeking modification
    must show a material change in circumstances, occurring after
    the entry of the previous custody order and affecting the best
    interests of the child. 
    Id. Next, the
    party seeking modification
    must prove that changing the child’s custody is in the child’s
    best interests. 
    Id. Because it
    was not necessary to refer to the in loco parentis
    doctrine to establish Margaret’s standing in this action, the
    question whether Margaret’s in loco parentis relationship with
    the child still existed was relevant in this case only to the
    extent it was relevant to the court’s consideration of whether
    or not it was in the child’s best interests for Margaret to con-
    tinue to have rights of custody and visitation. Because the
    rights Margaret had under the Texas order were based on legal
    concepts similar to our understanding of the in loco parentis
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    doctrine, we think that consideration of whether Margaret
    continued to maintain such status since the time of the Texas
    order is relevant to determining whether there has been a
    material change in circumstances and whether modification of
    Margaret’s rights is in the child’s best interests.
    As we noted in Windham v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016), an individual standing in loco parentis,
    which is temporary in nature, is not the functional equiva-
    lent of a lawful parent for all purposes or in all contexts. We
    believe that modification of custody is a context in which one
    who obtained rights as a result of in loco parentis status will be
    considered differently from one who is a lawful parent; there-
    fore, whether one has maintained the sort of relationship with
    the child that gave rise to in loco parentis status is relevant to
    modification of custody and visitation rights, both in determin-
    ing whether there has been a material change of circumstances
    and whether a modification of custodial and visitation rights is
    in the child’s best interests.
    We find that in this case, the district court did not abuse its
    discretion when it considered the change in Margaret’s rela-
    tionship with the child since the time of the Texas order, along
    with other factors, and determined that a material change in
    circumstances had occurred and that a modification order to
    eliminate Margaret’s rights of custody and visitation was war-
    ranted. We note first that the evidence showed that a change
    had occurred in the circumstances that had led to the deter-
    mination that Margaret had at one time held in loco parentis
    status with regard to the child. Such determination had been
    based on evidence that after her birth, the child lived with
    Margaret and Hannah and that Margaret had supported the
    child. But the evidence presented at the trial in 2016 showed
    that for a considerable time before the trial, Margaret had not,
    to use in loco parentis terminology, “assumed the obligations
    incident to the parental relationship.”
    The evidence indicated that after the Texas order and until
    2014, Margaret’s support of the child had been limited to sup-
    port she provided while the child was in her possession. The
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    evidence also showed that Margaret had not provided health
    insurance for the child as had been directed in the Texas order.
    The evidence further showed that since 2014, Margaret had
    assumed few of the obligations incident to the parental rela-
    tionship. Margaret’s contact with the child had been minimal,
    and she had provided almost no support other than occa-
    sional gifts.
    Margaret contends that these facts cannot be used against
    her, because since 2014, Hannah had prevented her from hav-
    ing contact with the child. But there was also evidence that
    the lack of contact was the result of Margaret’s mental health
    issues, and the district court found that Hannah had valid rea-
    sons for limiting Margaret’s contact with the child. Whether
    Margaret’s lack of contact was the fault of Hannah, the result
    of issues beyond Margaret’s control, or Margaret’s own actions,
    it is clear that for 2 years prior to the trial in this case, Margaret
    had not been performing the obligations incident to the paren-
    tal relationship. To the extent Margaret presented evidence that
    she attempted to maintain a relationship with the child, such
    attempts appear to have been focused on contact and visitation
    with the child and they do not appear to have been attempts to
    perform obligations incident to the parental relationship, such
    as offering to provide financial support for the child. The evi-
    dence in this case clearly established a material change in cir-
    cumstances since the time the Texas order was entered, because
    the nature and extent of Margaret’s relationship with the child
    had changed materially.
    With respect to the best interests of the child, we also
    believe that the evidence supported the district court’s deter-
    mination that it was in the child’s best interests to termi-
    nate Margaret’s court-ordered rights of custody and visitation.
    Because the relationship had diminished over time, there was
    less justification to legally require custody and visitation. As
    this case illustrates, it is within the court’s discretion to con-
    sider the fact that in the first instance, Margaret’s rights were
    based on her having had in loco parentis status rather than
    being a legal parent. Because her rights were initially based on
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    maintaining an existing relationship that was beneficial to the
    child rather than maintaining a parental relationship that was
    favored by the law, the fact that the relationship had dimin-
    ished over time is of greater weight in this circumstance than
    it would be were the court considering the rights of a legal
    parent. The law would ordinarily favor maintaining the rela-
    tionship with a legal parent. See, e.g., Windham v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016) (discussing parental prefer-
    ence). But in this case, it was valid for the court to consider
    whether maintaining the relationship through court-ordered
    rights of custody and visitation was in the child’s best interests
    when Margaret had not been assuming the obligations incident
    to the parental relationship. We conclude that the court did
    not abuse its discretion when it determined that it was not in
    the child’s best interests to continue Margaret’s court-ordered
    rights of custody and visitation.
    CONCLUSION
    Having rejected Margaret’s assignments of error, we affirm
    the district court’s order.
    A ffirmed.
    Wright, K elch, and Funke, JJ., not participating.