Hearing Procedure for a Full Minor Guardianship
In most hearings for the appointment of a guardian of a minor, the parties are not represented by legal counsel. All parties, of course, have a right to such representation, but the court is not under any obligation to appoint counsel if a party is indigent. The court may appoint a guardian ad litem or attorney for the minor if it feels such appointment to be necessary. The court may also order the department of social services or an employee or agent of the court to conduct an investigation of the proposed guardianship and to file a written report of the investigation.
The petitioner begins the hearing by calling his or her witnesses. If the petitioner is proceeding without an attorney, the judge may call the petitioner and petitioner's witnesses and ask them questions concerning the petition. If other interested persons appear and are taking a position contrary to the petitioner's position, the court should call them and take their testimony. The Court may receive all relevant and material evidence, including written reports pursuant to MCR 5.404(C). The court is permitted to rely upon such evidence to the extent of their probative value, even though such evidence may not be admissible under the Michigan Rules of Evidence. Interested persons must be given the opportunity to examine and controvert written reports which are received by the court. Interested persons may be allowed, in the court's discretion, to cross examine individuals making reports when such individuals are reasonably available. No assertion of an evidentiary privilege, other than the privilege between attorney and client, shall prevent the receipt and use of materials prepared pursuant to a court ordered examination, interview, or course of treatment.
Before a guardian of a minor may be appointed, the court must find by a preponderance of evidence that the welfare of the minor would be served by such appointment and that any of the following three circumstances exist:
- The parental rights of both parents or of the surviving parent have been terminated or suspended by prior court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetence, by disappearance, or by confinement in a place of detention.
- The parent or parents have permitted the minor to reside with another person and have not provided the other person with legal authority for the care and maintenance of the minor.
- All of the following:
- the minor's biological parents have never been married to one another
- 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
- the person whom the petition asks to be appointed guardian is related to the minor within the fifth degree by marriage, blood, or adoption
It is important to note that the circumstances must exist at the time of the filing of the petition. It should also be noted that we are essentially dealing with a shift of custodial rights. Therefore, the non custodial parent in a divorce has had his or her rights suspended for the purpose of determining if a circumstance supporting guardianship exist. However, if the Judgment of Divorce grants both parents joint custody, neither would be considered to have had their parental rights suspended by Judgment of Divorce.
The court may appoint as guardian a person whose appointment would serve the welfare of the minor. If the minor is 14 years of age or older, the court must appoint the person nominated by the minor unless the court finds the appointment contrary to the welfare of the minor. For the welfare of the minor, the court may at any time order reasonable support and reasonable visitation and contact of the minor ward by his or her parents.
If insufficient proof is presented for the appointment of a guardian, the court must dismiss the proceedings and may make any other disposition which would serve the welfare of the minor. If sufficient proof is presented for the court to appoint a guardian of a minor, the judge will sign an Order Appointing Guardian/Limited Guardian of a Minor (PC 653). After the proposed guardian signs an Acceptance of Appointment (PC 571), the judge will sign Letters of Guardianship (PC 633) which officially authorizes the Guardian to act.