Pre Hearing Procedure for a Full Minor Guardianship
The prior note discussed the preparation and the filing of the Petition For the Appointment of Guardian of Minor. This note will discuss what happens after the petition is filed with the probate court up until the time set for the hearing. A separate note will deal with the issue of the appointment of a temporary guardian.
After the petition is filed, the petitioner is given a hearing date by the court. It is the petitioner's responsibility to see that the interested persons are served with a notice of such hearing on a form (PC 562) entitled Notice of Hearing along with a copy of the petition. Some courts, however, will assist a petitioner with serving the interested persons. The persons 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.
A special rule (Michigan Court Rule (MCR) 5.112; MCR 3.205) applies where the minor is subject to the jurisdiction of another Michigan court. In such situations, written notice of the guardianship proceedings must be mailed to the attention of the clerk or register of the prior court and the appropriate official of the prior court. Appropriate official means the friend of the court, juvenile officer, or prosecuting attorney depending on the nature of the prior or subsequent court action and the court involved. The notice must be mailed at least 21 days before the date set for hearing. If the fact of continuing jurisdiction is not then known, notice must be given immediately when it becomes known.
An interested person may be served by mail, by personal service or by publication when necessary. However, if the person who is the subject of the petition is 14 years of age or older, notice of the initial hearing must be served on the person personally unless another method of service is specifically permitted in the circumstances. MCR 5.402(C). Service on interested persons may be accomplished by personal service 7 days before the date set for hearing or by ordinary first class mail 14 days before the date set for hearing. If an interested person is under a legal disability, MCR 5.105 (D) entitled Service on Parties Under Legal Disability or Otherwise Legally Represented should be consulted. If the address of an interested person is unknown, service may be accomplished by publication 14 days before the date set for hearing. In the case of publication, it is required that the party attempting service file with the court an affidavit showing that they have made a diligent effort to obtain an address for the interested person being served by publication. It is also important to remember that the publication notice must include the name of the person to whom the notice is directed and a statement that the result of the hearing may be a bar or affect the person's interest. Once service is accomplished, form (PC 564) entitled Proof of Service must be filed with the court.
After the petition for a full guardianship of a minor is filed, the court may order the Department of Social Services or an employee or agent of the court to conduct an investigation of the proposed guardianship and file a written report of the investigation. The court may also appoint an attorney for the minor if the court determines that the interest of the minor are or may be inadequately represented. The attorney is required to investigate the matter and represent the interests of the minor at the hearing.