Farnsworth v. Farnsworth

avoiding the bar of the statute of limitations. Accordingly, we
conclude that the district court did not err in denying Becton’s
motion for remand.
CONCLUSION
For the reasons discussed, we conclude that the order of the
district court affirming the decision of the Tax Commissioner
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. We affirm.
A ffirmed .
K elli m. fArnsworth , Appellee , v . thomAs d. fArnsworth ,
AppellAnt , And tim mc Q ueen And KArlA mc Q ueen ,
intervenors -Appellees .
756 N.W.2d 522
Filed October 17, 2008. 	No. S-07-1094.
1. Child Custody: Visitation: Appeal and Error. Child custody determinations,
and visitation 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. Judges: Words and Phrases. A judicial abuse of discretion requires that the rea-
sons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant
of a substantial right and a just result.
3. Child Custody: Parental Rights. Under the parental preference principle, a
parent’s natural right to the custody of his or her children trumps the interest of
strangers to the parent-child relationship and the preferences of the child.
4. Parent and Child: Words and Phrases. Parental unfitness means a personal
deficiency or incapacity which has prevented, or will probably prevent, per-
formance of a reasonable parental obligation in child rearing and which has
caused, or probably will result in, detriment to a child’s well-being.
5. Constitutional Law: Parental Rights: Presumptions. Absent circumstances
which terminate a parent’s constitutionally protected right to care for his or her
child, due regard for that right requires that a biological or adoptive parent be
presumptively regarded as the proper guardian for his or her child.
6. Child Custody: Parental Rights. The courts may not properly deprive a parent
of the custody of a minor child unless it is affirmatively shown that such par-
ent is unfit to perform the duties imposed by the relationship or has forfeited
that right.
7. ____: ____. Allowing a third party to take custody, even for a significant period
of time, is not the equivalent to forfeiting parental preference.
FArNSWOrTh v. FArNSWOrTh 	653
Cite as 276 Neb. 653
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

8. Child Custody: Parental Rights: Proof. Clear and convincing evidence of sub-
stantial, continuous, and repeated neglect of a child must be shown in order to
overcome the parent’s superior right.
Appeal from the District Court for Perkins County: donAld
e. rowlAnds, Judge. reversed.
J. Leef, of Sonntag, Goodwin & Leef, P.C., for appellant.
Lori A. Zeilinger and George M. Zeilinger for intervenors-
appellees.
heAvicAn , 	c.J., 	wright , 	connolly , 	gerrArd , 	stephAn ,
mccormAcK, and miller -lermAn , JJ.
heAvicAn , c.J.
INTrODUCTION
Thomas D. Farnsworth appeals the decision of the Perkins
County District Court allowing the parents of his deceased
ex-wife, Tim McQueen and Karla McQueen, to retain custody
of his two sons. After determining that the original custody
agreement granted custody to the McQueens, the district court
concluded that while Farnsworth had shown a material change
of circumstances, the best interests of the minor children
required custody to remain with the McQueens. We reverse the
decision of the district court.
BACKGrOUND
Farnsworth married Kelli M. McQueen (Kelli) on June 19,
1993, and they had two sons. During the course of the mar-
riage, the Farnsworths twice resided with the McQueens for
an extended period of time. Karla provided daycare for the
boys while the Farnsworths lived with the McQueens. When
Farnsworth and Kelli separated, Kelli and the boys moved in
with the McQueens.
Farnsworth and Kelli divorced in 2006, and their custody
agreement granted custody of their children to the McQueens.
As stated in the district court’s order, “‘[t]he permanent care,
custody and control of the minor children shall be awarded to
[Kelli’s] parents . . . subject to [Farnsworth’s] rights of rea-
sonable visitation.’” The custody agreement also stated that
654 	276 NeBrASKA rePOrTS

Farnsworth and Kelli would execute a power of attorney every
6 months, reaffirming that the McQueens had custody of the
two boys.
At the divorce hearing, Farnsworth stated that he had agreed
to give custody to the McQueens because “[m]y job, the way it
is set up right now, I’m out the door early in the morning, I’m
home late at night, and it would be better for the kids” to be
with their grandparents, the McQueens. No other evidence as
to the best interests of the children was presented. The district
court stated that while the custody agreement was unusual, it
found the arrangement to be in the best interests of the children
and granted custody to the McQueens.
After the divorce was finalized, Kelli moved to St. Louis,
Missouri, but moved back to Nebraska shortly thereafter. Kelli
died January 12, 2007. After her death, Farnsworth moved to
reopen the divorce decree to regain custody of the children. At
the hearing on this action, Farnsworth testified that from his
discussions with Kelli, it had been his understanding that the
McQueens would be given temporary custody of the boys until
Kelli was prepared to take custody again. however, Karla testi-
fied that it was her understanding that the McQueens would be
given custody of the children but that she had never discussed
it with Farnsworth.
evidence presented at the hearing showed that both boys,
then ages 13 and 11, had special needs. The testimony of Karla
and the guardian ad litem indicated that the boys required
a great deal of structure in order to do well in school. The
guardian ad litem recommended that the boys remain with
the McQueens, because the McQueens imposed the necessary
structure, but she further recommended that Farnsworth’s visi-
tation be increased. During a meeting in chambers, the district
court asked both boys if they had a preference, and both stated
that they would like to live with Farnsworth.
The district court found the facts demonstrated that Farnsworth
loved his children and had consistently exercised his visitation
rights since the divorce. The district court also found, however,
that in several respects, Farnsworth’s testimony at the hearing
“materially differed” from his deposition taken in anticipation
of trial. The discrepancies included Farnsworth’s changing his
FArNSWOrTh v. FArNSWOrTh 	655
Cite as 276 Neb. 653

testimony about plans to marry his girlfriend, statements about
why he had been dismissed from a job, and claims about being
denied access to his sons’ schools and records.
Also of concern to the district court was the fact that
Farnsworth had “admitted that he had held 21 different jobs
since his marriage to [Kelli] in 1993” and that “[t]he house
which [Farnsworth] occupies in Big Springs[, Nebraska,] is not
owned by him, but is owned by [his girlfriend].” The district
court stated that although both boys expressed a desire to live
with their father, they were of insufficient age and maturity to
render an informed opinion. The district court, however, made
no finding that Farnsworth was an unfit parent.
The district court determined the custody agreement signed
by the Farnsworths upon their divorce was part of the divorce
decree and applied the standards for modification of a custody
agreement. After determining that the death of Kelli consti-
tuted a material change of circumstances, the district court
addressed whether granting custody to Farnsworth would be
in the children’s best interests. The district court found that
Farnsworth’s employment and housing situation was in “a state
of flux” and that it was in the best interests of the children to
remain with the McQueens. Farnsworth appeals that decision.
We reverse.
ASSIGNMeNT OF errOr
Farnsworth assigns, restated and renumbered, that the district
court erred when it applied the standards for modification of a
custody agreement and failed to properly consider Farnsworth’s
parental preference.
STANDArD OF reVIeW
[1,2] Child custody determinations, and visitation deter-
minations, 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.1 A judicial abuse of discretion
requires that the reasons or rulings of a trial judge be clearly
1 McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
656 	276 NeBrASKA rePOrTS

untenable, unfairly depriving a litigant of a substantial right
and a just result.2
ANALYSIS
[3] The primary issue presented in this appeal is whether the
parental preference principle was applicable to Farnsworth’s
situation. Under the parental preference principle, a parent’s
natural right to the custody of his or her children trumps the
interest of strangers to the parent-child relationship and the
preferences of the child.3 Although the question present in
every child custody case is the best interests of the child, a
court cannot overlook or disregard that the best interests stan-
dard is subject to the overriding recognition that the relation-
ship between parent and child is constitutionally protected.4
The U.S. Supreme Court has held that due process of law
requires a parent to be granted a hearing on his or her fitness
as a parent before being deprived of custody.5 And the right
of a parent to the care, custody, and management of his or her
children is considered one of the most basic rights of man.6
Farnsworth argues that the district court erred in not consider-
ing his superior right. We agree.
[4-6] Parental unfitness means a personal deficiency or
incapacity which has prevented, or will probably prevent, per-
formance of a reasonable parental obligation in child rearing
and which has caused, or probably will result in, detriment to
a child’s well-being.7 Absent circumstances which terminate a
parent’s constitutionally protected right to care for his or her
2 Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004).
3 In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004). See,
also, Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. ed. 2d 511
(1978); Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992); Stuhr v.
Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992); Nielsen v. Nielsen, 207 Neb.
141, 296 N.W.2d 483 (1980).
4 Uhing, supra note 3.
5 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. ed. 2d 551
(1972).
6 Id.
7 See Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990).
FArNSWOrTh v. FArNSWOrTh 	657
Cite as 276 Neb. 653

child, due regard for that right requires that a biological or
adoptive parent be presumptively regarded as the proper guard-
ian for his or her child.8 The courts may not properly deprive a
parent of the custody of a minor child unless it is affirmatively
shown that such parent is unfit to perform the duties imposed
by the relationship or has forfeited that right.9
Farnsworth’s 	situation 	is 	somewhat 	unique 	in 	that 	he
and Kelli agreed to the placement of the children with the
McQueens through the custody agreement at the time of their
divorce. Although Farnsworth argues that the custody agree-
ment was invalid because it was based on a stipulation by the
parties and not on a finding of the children’s best interests, we
need not address this issue here. As discussed below, the law
clearly requires that a parent’s right to the care and custody of
his or her children be given due consideration, which the dis-
trict court failed to do.
Several cases indicate that the district court erred in not
considering Farnsworth’s superior rights. In Stuhr v. Stuhr,10
the district court in its divorce decree granted custody of the
minor child to Galen Stuhr. Galen was neither the biologi-
cal nor the adoptive father of the child. Four years later, the
mother, Catherine Myers, petitioned for a change in the cus-
tody agreement, alleging there had been a material change in
circumstances. Although Catherine had been undergoing treat-
ment for alcohol and chemical dependency at the time of the
divorce, she had since completed treatment and had remarried.
The district court found that there had been a material change
in circumstances, but that it was in the best interests of the
child to remain with Galen. Catherine appealed.
Galen contended that Catherine had waived her parental
rights by agreeing to the custody arrangement incorporated
into the dissolution decree and therefore had lost her superior
parental right to custody. After addressing the fact that parties
to a dissolution decree cannot control the disposition of minor
children by agreement, the court stated that
8 In re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005).
9 Nielsen, supra note 3.
10 Stuhr, supra note 3.
658 	276 NeBrASKA rePOrTS

[i]n the absence of a statutory provision otherwise, in
a child custody controversy between a biological or adop-
tive parent and one who is neither a biological nor an
adoptive parent of the child involved in the controversy,
a fit biological or adoptive parent has a superior right to
custody of the child.11
evidence presented at the hearing indicated that Catherine was
a fit parent and that she had nurtured a beneficial relationship
with her son. This court then held that the district court had
abused its discretion by not considering Catherine’s superior
right to custody.
Three additional cases addressing the right of a parent to
terminate a formal guardianship agreement utilized much the
same reasoning.12 This court pointed out that terminating a
guardianship involves two principles that sometimes come into
conflict in child custody issues.13 On the one hand, a court must
consider the best interests of the child, but on the other hand,
there is the constitutionally protected right of a parent to the
care and custody of his or her child.14 In each case, a mother
had left her child in the care of relatives and had instituted a
formal guardianship. And, in each case, the mother later sought
to terminate the guardianship and regain custody.
This court applied the parental preference principle in those
cases.15 A parent’s superior right to the custody of his or
her child “is acknowledgment that parents and their children
have a recognized unique and legal interest in, and a consti-
tutionally protected right to, companionship and care.”16 As a
result, the parent-child relationship will be protected, absent
parental unfitness.17 “Morever, the fact that . . . one outside
11 Id. at 245, 481 N.W.2d at 216.
12 In re Guardianship of Robert D., supra note 8; In re Guardianship of D.J.,
supra note 3; Uhing, supra note 3.
13 In re Guardianship of D.J., supra note 3.
14 Id.
15 See, In re Guardianship of Robert D., supra note 8; In re Guardianship of
D.J., supra note 3; Uhing, supra note 3.
16 Uhing, supra note 3, 241 Neb. at 374, 488 N.W.2d at 371.
17 Id.
FArNSWOrTh v. FArNSWOrTh 	659
Cite as 276 Neb. 653

the immediate family relationship . . . 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.”18
[7,8] 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 par-
ent 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 No such showing was made here.
Indeed, in the district court’s order, it did not even mention the
superior right of a biological parent to the care and custody of
his or her child as against a third party.
The record clearly establishes, and the district court made
a specific finding of fact, that Farnsworth cares for his sons
and has consistently exercised his visitation rights. 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.
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 Given our stan-
dard of review and applying the parental preference rule in this
case, and noting there is no evidence in the record that would
indicate Farnsworth is an unfit parent, we reverse the decision
of the district court and grant custody of the two minor chil-
dren to Farnsworth.
CONCLUSION
The district court abused its discretion by granting custody to
the McQueens. rather than focusing solely on the best interests
18 Id. at 377, 488 N.W.2d at 373.
19 See In re Guardianship of Robert D., supra note 8.
20 See id.
21 In re Guardianship of D.J., 268 Neb. at 247, 682 N.W.2d at 245.
660 	276 NeBrASKA rePOrTS

of the children, the district court should have also considered
the superior interests of Farnsworth, the biological parent. We
therefore reverse the decision of the district court and award
custody of the two minor children to Farnsworth.
reversed .
FArNSWOrTh v. FArNSWOrTh 	661
Cite as 276 Neb. 653