Can Step-Parents Get Custody in Divorce?

For many people these days, filling the role as stepparent is not an uncommon occurrence when getting married.  Many children come to know a non-biological parent as “Mom” or “Dad” and form a strong bond with these individuals.   Unfortunately, divorce happens. Which raises the question: What rights regarding the children does a stepparent have when he or she divorces the biological parent?   In Nebraska, the stepparent does have rights to visitation and can ask for custody in the divorce proceeding, but in only certain circumstances will their rights to custody trump those of the biological parent.

Before a stepparent can seek visitation or custody, they must first have the Court find that they stand In Loco Parentis to their stepchild.   To obtain such a finding, the stepparent must demonstrate that they have put themselves in the position of lawful parent and have assumed and discharged the obligations in the parental relationship.   Once this initial hurdle is overcome, the stepparent can request visitation and custody, but an even larger roadblock presents itself with the request for custody.

Like most states, Nebraska has adopted the Parental Preference Doctrine.  This Doctrine says a biological parent has rights to custody of their own children that are superior to all third-parties, even stepparents.   With its basis in the U.S. Constitution, the Preference is extremely difficult to overcome.   For a stepparent to overcome the Preference and obtain custody of their stepchildren, they have to show that a) the biological parent is unfit, b) the biological parent has forfeited their parental rights, or c) the Parental Preference is overcome by evidence that the best interests of the children call for different result.  To prove unfitness on the part of the biological parent, the Court must find that the parent has a deficiency that makes them unable to properly parent the child, and which is or could be a “detriment to the child’s well-being.”   To prove forfeiture, one must show that the biological parent has neglected and failed to discharge their parental duties over a lengthy and continuous period of time.    As for the third option, the Nebraska Appellate Courts have yet to hand down a decision wherein the Parental Preference was overcome solely by the best interests of a child lying elsewhere.  This language only creates a small crack through which a stepparent could possibly obtain custody without a finding of unfitness or forfeiture on the part of the biological parent. 

Ultimately, a stepparent who has embraced and fulfilled the role of parent to his or her stepchildren certainly has a good chance at being awarded visitation with those children, but very little chance of being awarded custody over a fit biological parent.