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Minor Guardianships

by Donald J. Baranski on May. 22, 2018

Other Power of Attorney Divorce & Family Law  Family Law 

Summary: Obtaining a guardianship over a minor.

MINOR GUARDIANSHIPS

 About the Professor:

Dr. Donald J. Baranski, received his Bachelor of Arts in Humanities Pre Law, from Michigan State University. This was a triple major of American History, Philosophy, and Psychology. He then received a Master of Arts degree in Philosophy from Michigan State University. He then obtained his Juris Doctor from Michigan State University College of Law. Dr. Baranski has been a licensed Attorney and Counselor at Law in the State of Michigan since 1988, practicing family law, and probate law. Dr. Baranski is a Certified Adoption Attorney.  Dr. Baranski has been teaching since 1989.  He has taught at Western Michigan University Cooley Law School, where he developed the course, “Adoption Law and Procedure” and wrote the text. He has also taught at Michigan State University College of Law, Jackson College, and the Eaton Rapids High School.

MINOR GUARDIANSHIPS

Minor guardianships are either full or limited.  A full guardian has standing to file a custody lawsuit in the family division of the circuit court.  A limited guardianship does not have this standing unless the parent has failed to substantially comply with a limited guardianship placement plan.  A limited guardian may not consent to marriage, adoption, or a release for adoption.

Alternative to a Guardianship

A guardianship may not be necessary if a parent executes a power of attorney to have someone make decisions for a minor for up to six months.

FULL GUARDIANSHIP

A full guardian may be appointed for a minor if one of the following situations exist:

  1. The parental rights of both parents or of the surviving parent have been terminated or suspended by court order, a judgment of divorce or separate maintenance, death, judicial determination of mental incompetence, a disappearance, or confinement in a place of detention.
  2. The parent or parents have permitted the minor to reside with another person and have not provided that person with legal authority to care for the minor.
  3. All of the following are true: the minor’s biological parents have never been married to one another, the custodial parent 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 5th degree by marriage, blood or adoption.

LIMITED GUARDIANSHIPS

A limited guardianship may only be established when the petitioning parent with custody agrees.

An approved limited guardianship placement plan developed by the parents and the proposed guardian is required. A limited guardian may not consent to the adoption of the minor, to the release of the minor for adoption, or to the marriage of the minor.  Otherwise, the duties and liabilities of a full guardian apply to limited guardianships except as modified by the limited guardianship placement plan.

 

A limited guardian may petition to be appointed to a full guardian, except that the petition shall not be based on suspension of parental rights by the order that appointed that person the limited guardian of that minor.   Circumstances allowing such a change of appointment are death, incapacity, or incarceration of a parent.

The limited guardianship placement plan makes reference to frequency of visits, child support, and other conditions that the parents are supposed to comply with.  If the parent seeks to end the guardianship, or a petition to terminate parental rights are sought, the parents’ compliance or non compliance with the plan is critical.

A limited guardianship placement plan contains an acknowledgment by the parent that if the parent fails without good cause to follow the plan, parental rights may be terminated.  A limited guardian is also held accountable to comply with the plan.

What Does It Mean to be a Guardian?

The guardian of a minor has decision making authority over the minor and the guardian is in a confidential position because he or she is standing in the place of a parent. A guardian, once appointed must file a report within 56 days of appointment on the condition of the minor, and then each year on the anniversary of the appointment, an annual report on the minor.

Child Support

The guardian of a minor is not legally required to support the child with the guardian’s own funds. Support owed on behalf of the minor may be received by the guardian.  If payable through the Friend of the Court, copies of the letter of authority are usually sufficient to direct payment to the guardian having physical custody of the minor.  A guardian may initiate child support proceedings.

Medical Treatment

The guardian shall authorize medical or other professional care, treatment, or advice.

Consent to Marriage, Adoption, or Release for Adoption

A full guardian may consent to the marriage of a minor ward. The ward must be at least 16 years old.  The adoption or the release of a minor ward for adoption may be consented to by a full guardian subject to the restrictions of the Adoption Code.

Contested Proceedings

In minor guardianships, contests are most likely to arise after the guardianship is in place, such as when the parent files a petition to terminate the guardianship. 

Initial Guardianship Appointment

A limited guardianship may be established only if the custodial parent(s) consent. The consent of a non-custodial parent is not needed for a limited guardianship. If the non- custodial parent objects to the guardianship or to the terms of the plan, the remedy is to bring a circuit court custody petition.  However, the non-custodial parent may object to the guardianship petition on the ground that the proposed guardian is not an appropriate choice.  While it is the custodial parent’s right to nominate a guardian, the court has the ultimate say in the appointment based on suitability.

Minor Nominates his/her Own Guardian

If the minor age 14 or older, nominates his/her own guardian, the court must appoint the nominated person unless it finds that the appointment is contrary to the minor’s welfare. Notwithstanding a parent’s testamentary or other written appointment of a guardian for the minor, the minor (age 14 or older) may prevent the appointment by filing an objection before the acceptance or within 28 days after acceptance.  The court may appoint the nominated guardian or another suitable guardian.

 

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