Petitioning for a Full Minor Guardianship
When petitioning for guardianship of a minor it must be remembered that there are two distinct types of guardianships for minors. The first is what is sometimes referred to as a "full" guardianship of a minor. The second is a limited guardianship of a minor. A limited guardianship receives its name from the fact the limited guardian may not consent to the adoption or marriage of the minor ward or the release of the ward for adoption. Since these two types of guardianships are procedurally different, I will treat them separately.
Any person interested in the welfare of a minor, or the minor if 14 years of age or older, may petition the court for the appointment of a guardian (full) of a minor. The petition must be filed in the probate court for the county where the minor resides or is present. The residence of a minor is generally the residence of his or her custodial parent or parents. The "is present" requirement is restricted by some courts to the county where the minor is voluntarily present. For example, if a child was placed by a court or parent in a facility outside of the county of residence, many courts would refuse venue even though the minor was physically present within the county served by the court.
The petition for the appointment of a guardian (full) of a minor is made by filing the form (PC 651) entitled Petition for the Appointment of Guardian of Minor. The court may only appoint a guardian if specific circumstance exist. The court may appoint a guardian for an unmarried minor if any of the following 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.
Several comments should be made concerning the above criteria necessary for full guardianship. First, we are dealing with custodial rights. In a divorce, if a parent is not granted custodial rights, their rights have been suspended for the purpose of meeting the criteria for guardianship. The criteria will remain until the Circuit Court amends the judgment. Thus, if the custodian parent dies, the criteria for guardianship continues to exist until the non custodial parent has the judgment amended. Second, a parent's abuse or neglect of a child is no longer a criteria for guardianship. Such abuse or neglect is properly handled by the family division of the circuit court in a child protective procedure. Third, the criteria for guardianship must exist at the time the petition is filed. Fourth, if both parents have custodial rights, both must be within one of the criteria for guardianship of a minor but not necessarily the same criteria. A father of a child born out-of-wedlock who has not had his paternity determined in a manner provided by law is not treated as a parent having any custodial rights and thus only the mother must be within a criteria for guardianship.
The interested persons need to be listed on the petition. It is extremely important that all interested parties be included and their proper address given. If an interested person is missed or not properly served, the hearing can not be held. The parties interested in the appointment of a guardian of a minor are as follows:
- the minor, if 14 years of age or older;
- if known by the petitioner, each person who had the principal care and custody of the minor during the 60 days preceding the filing of the petition;
- the parents of the minor or, if neither of them is living, any grandparents and the adult presumptive heirs of the minor, and
- the nominated guardian.
There may also be certain additional special persons who are interested in a particular proceeding. A guardian, conservator or guardian ad litem of a person must be served with notice of proceedings as to which the represented person is an interested person. An attorney who has filed an appearance must be served notice of proceedings concerning which the attorney's client is an interested person. The natural father of a child born out-of-wedlock need not be served notice of proceedings unless his paternity has been determined in a manner provided by law.
The petitioner must nominate someone to serve as the guardian on the petition. It can not be left open and most courts will not accept a petition unless a proper nomination is made. The court may appoint as guardian a person whose appointment would serve the welfare of the minor. The court must appoint a person nominated by the minor, if the minor is 14 years of age or older, unless the court finds the appointment contrary to the welfare of the minor. There is a place on the petition for the minor to make such a nomination.
The petitioner may also request that the court appoint a temporary guardian before the full hearing. If the petitioner does so, he or she should state the reasons as to why such emergency action is required. The procedure for a temporary guardianship will be discussed in a subsequent note. The petitioner may also ask that the court order the parent or parents to provide reasonable support for and visitation and contact with the minor. When the petition is completed, it must be filed with the probate court along with the filing fee. If the petitioner is indigent, the petitioner may file Affidavit and Order Suspension of Fees/Costs ( MC 20). The court may suspend the fees and costs if appropriate. The court will set a date for hearing after accepting the petition.