## Facts

- Brittanae M. Combs was born February 23, 1988.
- Brittanae’s mother, Ronda K. Combs, and Brittanae lived in the home of Brittanae’s maternal grandmother, Ronetta McKinney.
- Ronda died when Brittanae was about 19 months old, and Brittanae remained living with McKinney, who assumed full responsibility for her day-to-day care.
- Brittanae did well in McKinney’s home, including school success and stable community ties.
- On June 3, 1996, the county court appointed McKinney as Brittanae’s legal guardian.
- Adrian S. O’Neal (also known as Adrian S. Bolling) is Brittanae’s biological father. He maintained contact with Brittanae, generally at least monthly, and sometimes provided clothing or gifts, but he did not take on primary caretaking responsibilities.
- On August 20, 1997, the district court entered a paternity decree establishing O’Neal as Brittanae’s legal father and ordering him to pay child support; the decree noted McKinney’s guardianship and Brittanae’s physical placement with McKinney.
- O’Neal filed a county-court petition to terminate the guardianship in 1997; the petition was denied after he failed to appear for trial, and judgment was entered against him in April 1999.
- O’Neal filed a second guardianship-termination petition in September 1999; after trial, the county court ruled for McKinney in January 2000, and O’Neal’s appeal was later dismissed for lack of progression.
- O’Neal also sought to modify the paternity decree to obtain custody. At the custody trial, 13-year-old Brittanae testified she had always lived with McKinney, referred to McKinney as “mom,” and wanted to remain with her.
- The trial court found both McKinney and O’Neal fit, but concluded Brittanae should remain with McKinney; it awarded O’Neal visitation rather than custody.
- O’Neal appealed, arguing the parental preference doctrine entitled him to custody because there was no finding that he was unfit.

## Issues

1. Whether the district court abused its discretion by awarding custody to a nonparent grandmother instead of the biological father under Nebraska’s parental preference doctrine.
2. Whether the father’s conduct amounted to forfeiture of the superior custodial right so that custody could remain with the grandmother even though the father was found fit.

## Decision

- The Nebraska Court of Appeals affirmed the district court’s custody order.
- The court held that a biological parent’s superior right to custody may be lost by forfeiture, not only by a finding of unfitness.
- The record supported the district court’s conclusion that O’Neal had forfeited the parental preference through substantial, continuous failure to discharge the duties of parental care and protection while McKinney functioned as Brittanae’s parent.
- Because the trial court’s ruling was not clearly untenable on the record, there was no abuse of discretion in leaving custody with McKinney and granting O’Neal visitation.

## Legal Principles

- Child custody and visitation matters are entrusted initially to the trial court; appellate review is de novo on the record, but the decision is ordinarily affirmed absent an abuse of discretion.
- An abuse of discretion exists when the trial court’s reasons or ruling are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
- Under the parental preference doctrine, in a custody dispute between a biological parent and a person who is neither a biological nor adoptive parent, the biological parent has a prima facie superior right to custody.
- A court may not deprive a biological or adoptive parent of custody unless it is affirmatively shown that the parent is unfit or has forfeited the custodial right.
- Forfeiture may be shown by substantial, continuous, and repeated neglect of the child and failure to carry out the duties of parental care and protection.
- A person stands in loco parentis when the person assumes the obligations of a parent, without formal adoption; such a person may be treated as having parental rights and duties in the custody analysis.
- Where credible evidence conflicts on a material fact, an appellate court may give weight to the trial judge’s opportunity to hear and observe the witnesses.

## Conclusion

The Nebraska Court of Appeals affirmed an order keeping Brittanae Combs in the custody of her maternal grandmother, Ronetta McKinney, even though Brittanae’s biological father, Adrian O’Neal, was found fit, because the parental preference doctrine did not control once the evidence showed forfeiture: McKinney had raised Brittanae for years as her primary caregiver and legal guardian, while O’Neal’s involvement and assumption of parental obligations fell short of the duties associated with custodial parenting, making the district court’s custody award a proper exercise of discretion.


State ex rel. Combs v. O'Neal, 662 N.W.2d 231 (2003)