Natural guardians; court appointment of guardian of minor; standby guardian; conditions for appointment; child born out of wedlock; additional considerations; filings.
(a) The father and mother are the natural guardians of their minor children and are duly entitled to their custody and to direct their education, being themselves competent to transact their own business and not otherwise unsuitable. If either dies or is disqualified for acting, or has abandoned his or her family, the guardianship devolves upon the other except as otherwise provided in this section.
(b) In the appointment of a parent as a guardian when the other parent has died and the child was born out of wedlock, the court shall consider the wishes of the deceased parent as expressed in a valid will executed by the deceased parent. If in such valid will the deceased parent designates someone other than the other natural parent as guardian for the minor children, the court shall take into consideration the designation by the deceased parent. In determining whether or not the natural parent should be given priority in awarding custody, the court shall also consider the natural parent's acknowledgment of paternity, payment of child support, and whether the natural parent is a fit, proper, and suitable custodial parent for the child.
(c) The court may appoint a standby guardian for a minor whose parent is chronically ill or near death. The appointment of a guardian under this subsection does not suspend or terminate the parent's parental rights of custody to the minor. The standby guardian's authority would take effect, if the minor is left without a remaining parent, upon (1) the death of the parent, (2) the mental incapacity of the parent, or (3) the physical debilitation and consent of the parent.
(d) The court may appoint a guardian for a minor if all parental rights of custody have been terminated or suspended by prior or current circumstances or prior court order. The juvenile court may appoint a guardian for a child adjudicated to be under subdivision (3)(a) of section 43-247 as provided in section 43-1312.01. A guardian appointed by will as provided in section 30-2606 whose appointment has not been prevented or nullified under section 30-2607 has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty days after notice of the guardianship proceeding.
(e) The petition and all other court filings for a guardianship proceeding shall be filed with the clerk of the county court. The party shall state in the petition whether such party requests that the proceeding be heard by the county court or, in cases in which a separate juvenile court already has jurisdiction over the child in need of a guardian under the Nebraska Juvenile Code, such separate juvenile court. Such proceeding is considered a county court proceeding even if heard by a separate juvenile court judge, and an order of the separate juvenile court in such guardianship proceeding has the force and effect of a county court order. The testimony in a guardianship proceeding heard before a separate juvenile court judge shall be preserved as in any other separate juvenile court proceeding.
Source:Laws 1974, LB 354, § 226, UPC § 5-204; Laws 1995, LB 712, § 18; Laws 1998, LB 1041, § 4; Laws 1999, LB 375, § 1; Laws 2014, LB908, § 1; Laws 2018, LB193, § 66.
Nebraska Juvenile Code, see section 43-2,129.
The priority provision of subsection (d) of this section is intended to address circumstances in which a court-appointed guardian comes into existence before a parental nomination is discovered or accepted, so that the authority of the court-appointed guardian will be terminated in favor of the parental nomination. In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004).
Pursuant to subsection (3) of section 43-285, when a separate juvenile court or county court sitting as a juvenile court awards custody of a minor to the Department of Health and Human Services, the court has authority to award custody to a family the department has designated as suitable guardians without resorting to a proceeding under this section. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000).
Trial court's ruling that parental rights had been suspended because of the then current circumstances was not erroneous. In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d 768 (1996).
In a parent's habeas corpus proceeding directed at child custody, a court may not deprive a parent of a minor's custody unless it is affirmatively shown that the parent seeking habeas corpus relief is unfit to perform the parental duties imposed by the parent-child relationship or has legally lost parental rights in the child. Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992).
A party seeking to establish guardianship must file a petition in county court. In re Interest of Brianna B., 21 Neb. App. 657, 842 N.W.2d 191 (2014).
Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the record. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185 (2009).
The "fitness" standard applied in a guardianship appointment pursuant to this section is analogous to a juvenile court's finding that it would be contrary to a juvenile's welfare to return home. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185 (2009); In re Guardianship of Brenda B. et al., 13 Neb. App. 618, 698 N.W.2d 228 (2005).
The parental preference principle applies to proceedings to initially determine whether to appoint a guardian over a parent's objection. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185 (2009).
Under subsection (d) of this section, the determination of who shall be guardian and conservator is ultimately dependent upon the best interests of the children, although a testamentary nomination of a guardian or conservator may have statutory priority. In re Guardianship & Conservatorship of McDowell, 17 Neb. App. 340, 762 N.W.2d 615 (2009).
Pursuant to subsection (e) of this section and section 43-247(10), guardianship was properly docketed in the county court and heard by a separate juvenile court judge. In re Guardianship of Brenda B. et al., 13 Neb. App. 618, 698 N.W.2d 228 (2005).