While a minor’s parents are responsible for exercising his or her legal rights, there are certain circumstances in which a court will allow for the appointment of a guardian of a minor to exercise these rights. In Michigan, the process of appointing a guardian of a minor is governed by MCL 700.5204. That statute allows any “person interested in the welfare” of the minor to file a petition requesting that the court appoint a guardian of a minor. The statute provides that upon receipt of the petition for appointment of a guardian, the court has the right to order the Michigan Family Independence Agency or a court employee (generally a guardian ad litem) to conduct an investigation of the proposed guardianship and to file a written report to be reviewed by the court.
The Hearing on a Petition for Appointment of a Guardian of a Minor
After the petition is filed, a hearing is usually held within 4 weeks. If there are no objections to the petition and the court finds that it is in the best interest of the minor, a guardian will be appointed at the hearing.
A court may only appoint a guardian of a minor (that is not married) in the following three circumstances. First, if the parental rights of the parents have been terminated or suspended by court order, by a divorce judgment, death, mental incompetency, disappearance, or incarceration. Second, if the parent or parents permit the minor to reside with another person and the minor is not residing with his or her parent or parents when the petition is filed. Finally, a court will allow for the appointment of a guardian for a minor if the minor’s biological parents have never been married, the minor’s parent who has custody dies or goes missing and the other parent has no 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.
Deshaine v. St. Germain case- A Guardian of a Minor
The issue of what constitutes parental permission to reside with the proposed guardian was examined by the Michigan Court of Appeals in Deschaine v. St. Germain. In Deschaine, the mother and father shared legal custody but the mother had sole physical custody. During her life, the mother asked her parents to have the minor live with them on several different occasions. One such occasion lasted six months and the grandparents had a fully furnished room for the minor. The mother also verbally expressed on multiple occasions her desire to have her parents care for the minor in the event that the mother predeceased them.
The mother did end up passing away before her parents and the grandparents picked up the minor and took her to their home. The grandfather petitioned the court to be appointed the minor’s guardian, but the minor’s father objected. The court looked to whether the minor’s parents had “permitted” the minor to reside with the grandfather at the time of the mother’s death. The court held that despite the past care that the grandparents had provided and the mother’s expressed desire for the grandparents to care for the minor after her death, there was no permission at the time of death for the minor to reside with the grandparents. When the mother died, the minor was still living with her and therefore she had not permitted the minor to reside with her grandparents.
Call The Probate Pro for Help – Guardian of a Minor
Most situations involving a petition for the appointment of a guardian of a minor do not result in contentious litigation. With proper representation by a competent lawyer, the process can proceed without much difficulty. If you are considering filing a petition for the appointment of a guardian of a minor, please contact the Probate Pro for assistance.