A minor most often becomes subject to a guardianship when his or her parents are unable to provide care because of death, incapacity, substance abuse issues, or some other reason. There are generally three types of guardianships: Full Guardianship, Limited Guardianship, and Temporary Guardianship.
A person interested in the welfare of a minor may petition the court for an appointment as full guardian. An “interested person” can be a parent, relative, friend or even a Department of Human Service (DHS) caseworker. Under Michigan law, the court may appoint a guardian of an unmarried minor in the following situations:
- The parental rights of both parents or the surviving parent are terminated;
- The parent or parents allow the minor to reside with another person but did not provide the legal authority for the minor’s care; or
- When all of the following apply:
- The minor’s biological parents have not 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 through a court order;
- The person requesting to be appointed guardian is related to the minor within the fifth degree by marriage, blood or adoption.
A limited guardianship differs from a full guardianship in that it requires the consent of the parent or parents with legal custody – it is voluntary. Under Michigan law, the court may appoint a limited guardian for an unmarried minor in situations where all of the following apply:
- The parents with custody of the minor provide consent, or in the case of only 1 parent having custody of the minor, the parent with sole custody consents to the appointment;
- The parents or parent with custody voluntarily consents to the supervision of their parental rights;
- The court approves a limited guardianship placement plan agreed to by both the parent(s) of the minor and the person whom the court appoints as the limited guardian.
The Placement Plan must include the reason the parent or parents are requesting the court to appoint a limited guardian, a parenting time schedule that will allow the parent or parents to maintain a sufficient parent-child relationship, the length of time the limited guardianship will stay in place, how the minor will be supported financially, and any other provisions the parent or parent(s) and the guardian agree upon.
Under certain circumstances, it may become necessary for the court to appoint a temporary guardian, typically when immediate decisions affecting the minor’s health or welfare need to be made, or if it comes to the court’s attention that an existing guardian is not properly performing his or her duties. Under Michigan law, a temporary guardian can only be appointed for six months and the temporary guardian assumes the powers of the suspended guardian.
A petition for guardianship is filed in the Probate Court of the county where the child resides, and there are strict notice requirements that must be followed. Specifically, notice of the petition must be given to each person who had principal care and custody of the minor during the 63 days before the petition was filed as well as the parents of the minor, or if neither parent is living, any grandparents and adult presumptive heirs. The biological father of a child born out of wedlock need not be served notice unless paternity has been determined.
Contact me at 248-647-7900 if you have questions regarding a guardianship matter.