Situations may arise where someone may wish to apply for guardianship of a minor at the probate court. The parents may have left their child with a friend or relative without any expectation of returning or without any legal authority to make decisions for his or her welfare (e.g. power of attorney). The parents may also be engaging in harmful, neglectful and immoral conduct that poses a risk to the child. For the protection of that minor, someone may request appointment as legal guardian to fill the parental role until the birth parents are able to resume their duties. A guardianship by its nature is temporary as it does not terminate the legal relationship that exists between a child and his or her parents. However, it does invest into the proposed guardian certain rights and responsibilities regarding the care and maintenance of the child while suspending the authority of the birth parents.
There are three types of minor guardianships that can be granted by the probate court in Michigan:
FULL GUARDIANSHIP (MCL 700.5204)
A person interested in the welfare of a minor, or a minor if 14 years of age or older, may petition for the appointment of a guardian for the minor in the county where the minor resides or is present at the time of filing. The probate court may appointed a guardian for an unmarried minor if ANY of the following circumstances exist:
- (1) The parental rights of both parents or the surviving parent are terminated or suspended by prior court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetency, by disappearance, or by confinement in a place of detention.
- (2) The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor's care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed.
- (3) The minor's biological parents have never been married to one another AND the minor's parent who has custody of the minor dies or is missing and the other parent has not been granted legal custody under court order AND the person whom the petition asks to be appointed guardian is related to the minor within the fifth degree by marriage, blood, or adoption.
The court may order the family independence agency or a court employee or agent to conduct an investigation of the proposed guardianship and file a written report of the investigation. In addition, for the minor's welfare, the court may at any time order the minor ward's parents to pay reasonable support and order reasonable parenting time and contact of the minor ward with his or her parents.
Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the legal requirements for a full guardianship are satisfied, and the minor's welfare will be served by the requested appointment, then the court shall make the appointment. Otherwise, the court may dismiss the proceeding or make another disposition of the matter that will serve the minor's welfare.
LIMITED GUARDIANSHIP (MCL 700.5205)
An interested party may file for a limited guardianship in the country where the minor resides or is present at the time of filing. The probate court may appoint a limited guardian for an unmarried minor upon the petition of the minor's parent or parents if ALL of the following requirements are met:
- The parents with custody of the minor consent or, in the case of only 1 parent having custody of the minor, the sole parent consents to the appointment of a limited guardian.
- The parent or parents voluntarily consent to the suspension of their parental rights.
- The court approves a limited guardianship placement plan agreed to by both of the following parties:
- The parents with custody of the minor or, in the case of only 1 parent having custody of the minor, the sole parent who has custody of the minor.
- The person or persons whom the court will appoint as the minor's limited guardian.
A limited guardianship REQUIRES the consent of the parents for placement in a limited guardian and participation in a limited guardianship placement plan. This placement plan must include the reasons why a limited guardian is requested, the duration of the limited guardianship, provisions for parenting time and child support, and any other provisions the parties agree that the parents must abide by. If a parent who agreed to the placement plan substantially fails to comply with the plan without good cause, then the probate court may take action to terminate that parent's parental rights.
Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the legal requirements for a limited guardianship are satisfied, and the minor's welfare will be served by the requested appointment, then the court shall make the appointment. Otherwise, the court may dismiss the proceeding or make another disposition of the matter that will serve the minor's welfare.
TEMPORARY GUARDIANSHIP (MCL 700.5213)
After a petition for a full guardianship or limited guardianship of a minor is filed, the probate court may appoint a temporary guardian, if necessary, with the status of an ordinary guardian of a minor, but the temporary guardian's authority shall not exceed 6 months.
POWERS OF A GUARDIAN OVER A MINOR (MCL 700.5215)
A minor's guardian has the powers and responsibilities of a parent who is not deprived of custody of the parent's minor and unemancipated child, except that a guardian is not legally obligated to provide for the ward from the guardian's own money and is not liable to third persons by reason of the parental relationship for the ward's acts. A guardian has all of the following powers and duties:
- The guardian shall take reasonable care of a ward's personal effects and commence a protective proceeding if necessary to protect the ward's other property.
- The guardian may receive money payable for the ward's support to the ward's parent, guardian, or custodian under the terms of a statutory benefit or insurance system, or a private contract, devise, trust, conservatorship, or custodianship. The guardian shall exercise due care to conserve any excess for the ward's future needs unless a conservator is appointed for the ward's estate, in which case the excess shall be paid over at least annually to the conservator. The guardian shall not use that money or property for compensation for the guardian's services except as approved by court order or as determined by a duly appointed conservator other than the guardian. A guardian may institute a proceeding to compel a person's performance of a duty to support the ward or to pay money for the ward's welfare.
- The guardian shall facilitate the ward's education and social or other activities, and shall authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless it would be illegal for a parent to have consented.
- A guardian may consent to a minor ward's marriage.
- Subject to certain conditions, a guardian may consent to marriage or adoption of a minor ward or to the release of a minor ward for adoption (UNLESS this is a limited guardianship)
- A guardian must report the condition of the ward and of the ward's estate that is subject to the guardian's possession or control as ordered by the court on petition of a person interested in the minor's welfare or as required by court rule. The report must detail the condition of the ward, medical or mental health treatment or care to which the ward was subjected, and what reason, if any, exists for the continuation of the guardianship.
- Within 14 days after a change in the ward's place of residence, the guardian shall give to the court notice of the ward's new address.
The probate court retains jurisdiction over the full or limited guardianship and may review it as often as it considers necessary (if the child is under 6 years old, it shall be reviewed at least annually). In conducting the review, the court shall consider all of the following factors under MCL 700.5207:
- The parent's and guardian's compliance with either the limited guardianship placement plan or court-structured plan.
- Whether or not the guardian has adequately provided for the minor's welfare.
- Order the family independence agency or a court employee or agent to conduct an investigation and file a written report of the investigation.
- The necessity of continuing the guardianship.
- The guardian's willingness and ability to continue to provide for the minor's welfare.
- The effect upon the minor's welfare if the guardianship is continued.
- Any other factor that the court considers relevant to the minor's welfare.
The minor's parents may, at any time, petition the court to terminate the guardianship under MCL 700.5208. As stated before, guardianships are temporary by their nature and additional litigation is nearly certain as the child ages, the parent's circumstances change and the guardian's interests evolve. The probate court may do one of the following regarding a petition to terminate:
- Order the family independence agency or a court employee or agent to conduct an investigation and file a written report of the investigation regarding the best interests of the minor or give testimony concerning the investigation.
- Utilize the community resources in behavioral sciences and other professions in the investigation and study of the best interests of the minor and consider their recommendations for the disposition of the petition.
- Appoint a guardian ad litem or lawyer-guardian ad litem to represent the minor. The costs of the L-GAL may have to be shared by the parties.
- Take any other action considered necessary in a particular case, including scheduling an evidentiary hearing to decide whether the guardianship should continue.
The legal grounds for any of these guardianships can be confusing, can turn on technicalities, and can cause a dismissal at any step if the proper elements are not asserted. In addition, the guardianship may constantly be subjected to court action as the wishes and needs of the child, the parents and even the guardian change over the years. Seeking the advice and guidance of a skilled probate lawyer is always recommended from the very beginning before the legal endeavor turns into a waste of time and money.
If you have any questions about guardianship of a minor or require legal representation (either as the petitioner or the parent), then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.