This is a very important case if you are fighting against another parent since the same legal reasoning should be applied, except that now you are battling another biological parent. You will notice that this Nebraska case is a biological parent battling grandparents, and that the cases that the Supreme Court uses to support their decision are also parents battling nonbiological third parties, even one stepparent. Using the logic of this court though the same fashion they used the Supreme Court’s logic to support protecting a biological parent’s rights. You can safely say that when two biological parents are at odds, the dispute naturally splits your rights in half, they are being split equally and without prejudice, but that to reduce any further than that based on a court or the other parent or any experts brought to testify opinion would be violating one of the biological parent’s rights unequally and without proper legal authority. You can use these same principles argued in this case. “As a result, the parent-child relationship will be protected, absent parental unfitness.” (Stuhr)
We hear divorce courts allowing parents to beat each other up over who can provide the better home, who parents better, etc. However, under this reasoning, “…the fact that . . . one . . . may be able to provide greater or better financial care or assistance for a child than can a parent is an insufficient basis to deprive a parent of the right to child custody.” (Uhing) If you pull this case up you will see that this quote was related to third-parties trying to encroach on the natural parent’s rights. However, since the Supreme Courts have declared that parental rights are attached to each parent, then it should not matter whether the person attacking your rights is another biological parent, only in that your rights if deprived have to be deprived equally between both of you. So even though this quote was pertaining to third-parties, hopefully you can see how it’s the rationale that matters and not always the minute details to how the argument came about.
Another important determination that this court makes is “Allowing a third party to take custody, even for a significant period of time, is not the equivalent to forfeiting parental preference.19 Although length of guardianship may be considered by a court when determining whether a parent has waived his or her superior rights, it is not dispositive. Clear and convincing evidence of substantial, continuous, and repeated neglect of a child must be shown in order to overcome the parent’s superior right.20”
Another important distinction the court makes that would relate to how a court determines when their determination is superior to a biological parent’s and supporting the same reasoning of the U.S. Supreme Court, “While there are facts that indicate that the boys might have more stability if they remain with the McQueens, such a finding alone is not enough to overcome the superior rights of a biological parent.” We argue that even another biological parent does not get to take this away from the other without “Clear and convincing evidence of substantial, continuous, and repeated neglect of a child” (Farnsworth) shown to overcome that right.
The justices in Farnsworth go on to state that “Courts apply the parental preference principle “because the best interests standard, taken to its logical conclusion, would place the minor children of all but the ‘worthiest’ members of society in jeopardy of a custody challenge.”21” The father in this case got his children back and the courts in Nebraska have a clear standard to follow.
We hope that sharing our notes with you as we review cases is helping. We urge that judges in courts in other states follow this example. We urge attorneys and parents draft their pleading to reflect these instructions to their judge. It is the job of the parties in the suit to frame their case in the manner in which they expect the judge to rule. Without this direction, are you leaving the custody time and the rights to your children at risk of needless error?