The state of Michigan allows for legal guardianship of minors, which is custody of a child by a person who is not their parent. The guardian is responsible for providing their ward's daily and long-term needs, such as shelter, education, food and clothing in the event their parents cannot provide for them. This could happen for a variety of reasons, including incarceration or abandonment.
For a guardian to obtain custody of a minor, they must petition the probate court, which may or may not grant it based on what it believes is in the child's best interest. Michigan has two types of guardianship – full and limited – both of which the court can terminate at the request of the child's parents or the child themselves.
Legal Guardianship in Michigan
Legal guardianship for minors in Michigan is available to parents who are absent due to illness, incarceration or other circumstances. It allows them to name family members or interested persons as caregivers for their children and gives that person legal rights regarding their child's care. In some instances, the parents may have left their children with friends or relatives and there are no expectations for their return, or they have not granted anyone legal authority over the child's well-being.
The court may put a guardian in place if parents are still present but engage in abuse or neglect of their children. A legal guardian makes decisions regarding a child's care, discipline and protection.
Despite the situation, many parents don't typically lose their legal rights permanently and can still play a role in their children's lives. A person may request the appointment of a guardian through Michigan probate court to take responsibility for children until the parents can resume their duties. The filing fee for a legal guardianship is $175.
What Is a Guardian Ad Litem?
When someone petitions for guardianship, the court may provide the child with a Guardian Ad Litem (GAL), a person who serves as an independent representative of the child and who has their best interest in mind. The GAL has a right to full and active participation in any proceedings regarding the minor and has access to all relevant information. They will conduct an independent, full investigation, form their own opinion regarding the child's best interests, and advocate for that child based on their findings. The court's ability to fairly and clearly protect a minor's best interests is largely based on the skill and expertise of the GAL.
However, there are occasions where the court does not think that the GAL adequately represents the child's best interest. In that instance, it may appoint a Lawyer-Guardian Ad Litem (LGAL) to represent the child. In a proceeding with an LGAL, they, too, will investigate and file a written report and recommendation, which the court may take into account. The court will not admit the LGAL's report and recommendation into evidence unless all parties agree to its admission. They may also use the LGAL's report and recommendation for a settlement conference.
Conditions for Full Guardianship in Michigan
In Michigan, full-time guardianship does not require parental consent. Someone interested in the welfare of a minor may petition the court to be a guardian. Conversely, a child 14 or older/mileg.aspx?page=GetObject&objectname=mcl-700-5204#:~:text=5204.,a%20guardian%20for%20the%20minor.) can request a guardian from the court. After an individual files a petition for full guardianship, the court may appoint a temporary guardian for no longer than six months. The appointment of a temporary guardian precedes a permanent guardianship.
The probate court may appoint a full-time legal guardian for the minor if:
- A prior court order, such as a divorce, a separation, disappearance, determination of mental incompetency, or incarceration has terminated the rights of both parents or a surviving parent.
- The child's parents allow them to live with someone else and do not provide that person with legal authority for their care. The children do not reside with their parents when the petition for legal guardianship is filed.
- The minor's parents have never been married to each other; the parent with custody dies or is missing; the court has not granted legal custody to the other parent; and the person seeking guardianship is related to the minor within five degrees of adoption, blood or marriage.
Procedure for Full Guardianship
When someone files a petition for guardianship in Michigan, a family independence agency or agent of the court will investigate the potential guardianship and writes a report on their findings. Additionally, the court may order a minor's parents to make reasonable support payments to the proposed guardian or order a reasonable amount of parent time or contact with the child.
If the investigator finds that someone is qualified for full guardianship, believes they will serve the child's welfare, their home is satisfactory, and they have fulfilled all the other legal requirements, the court will grant the appointment of the proposed guardian. If the nominated guardian does not meet the criteria, the court may dismiss the request or make another arrangement to serve the child's welfare.
Conditions for Limited Guardianship in Michigan
A limited guardian has the same authority as a full guardian, but cannot authorize a minor's marriage, adoption or release for adoption. A person interested in limited guardianship of a minor can file to be appointed in the county where the minor lives or is present at the time they file. The court may appoint the guardian upon the petition of the minor's parents if:
- The parent or parents who have custody of the minor consent to the guardian's acceptance of appointment.
- The parent or parents voluntarily consent to suspend their parental rights.
- The court approves a limited guardianship placement plan for the minor agreed to by both the parents and limited guardian.
The placement plan must include the reasons for requesting a limited guardianship, the duration of the guardianship, provisions for child support, parenting time and additional arrangements agreed to by both parties. Parents who agree to a placement plan, but fail to comply with it without good cause, can lose their parental rights in probate court.
Much like with full guardianship, an investigation will occur. If an investigator finds that the person is qualified for limited guardianship and believes they will serve the child's welfare, their home is satisfactory, and they have fulfilled all the other legal requirements, the court will grant the appointment. If they do not meet the criteria, the court may dismiss the request or make another arrangement to serve the child's welfare.
Guardian's Authority in Michigan
A legal guardian has most of the same powers and responsibilities over a child as a parent except that they do not have a legal obligation to provide for the minor using their own money. The guardian must:
- Take reasonable care of the minor's personal effects/mileg.aspx?page=GetObject&objectname=mcl-700-5215) and protect their other property, if necessary.
- Exercise care to conserve any excess money they receive for the minor's future needs unless the court requires a conservatorship for the minor's estate, in which case they pay the excess to the conservator. Excess funds shall not be used for compensation for the guardian's services unless the court or conservator approves it.
- Facilitate the minor's education and social activities, and authorize medical decisions or other types of professional care, treatment or advice.
- A full-time guardian may consent to a minor's marriage, adoption or release them for adoption.
The legal guardian must report the minor's condition and the estate subject to the guardian's possession or control to the court. This report details the minor's mental and physical conditions, and their medical treatment and healthcare, along with the reason that the guardianship should continue. They must also notify the court if there has been a change in the minor's place of residence and give the court the new address within 14 days of the minor's move.
Probate Court's Role in Legal Guardianships
The probate court maintains jurisdiction over the guardianship of a minor. It may review the placement of the minor as often as it considers necessary. If a child is under the age of six/documents/mcl/pdf/mcl-700-5207.pdf), the court will review the guardianship annually.
In its review, it considers factors such as:
- Compliance of the parent or guardian with the limited guardianship's placement plan or a court-structured plan.
- Whether the guardian has made adequate provisions for the child's welfare.
- How necessary it is to continue the guardianship.
- Guardian's ability and willingness to continue to provide for the child's welfare.
- Effect of the guardianship on the child's welfare.
- Additional factors it considers relevant to the minor's welfare.
The court will order a family independence agency or agent to conduct an investigation and file a written report. After the review, the court may continue the guardianship or schedule a hearing on the status of the guardianship.
Court Decisions at Guardianship Hearings
At a hearing date for the continuation of a limited guardianship, the court may continue it or order the guardian and parents to modify the placement plan as a condition to continue.
In a hearing for the continuation of a full guardianship, the court may continue the guardianship or order the guardian and the parents to modify the court-structured plan to resolve the conditions laid out in the review.
Terminating a Guardianship in Michigan
A minor's parent or parents may petition the court to end a guardianship if they have a legal right to the minor's custody. After they petition the court, it orders the family independence agency or agent of the court to, once again, conduct an investigation and file a written report on its findings regarding the minor's best interest and also give testimony concerning it. The investigator will use community resources in several professions, including behavioral sciences, to discern what the best interests of the minor are and makes recommendations.
When deciding to terminate a guardianship, Michigan law provides that the court must consider specific factors, such as the physical and mental health of the parent and guardian, and how well the minor is doing in the guardian's home, school and community. The minor's opinion regarding where they want to live is also important to the court, which acts in the child's best interest. If a minor is 14 years old or older, they may ask the court to consider removing the guardian. Conversely, they may ask to stay with the guardian or ask the court to appoint a different person.
- Michigan Bar: The Law for Minors, Parents, Counselors
- Freewill: What Is a Legal Guardian, and How to Choose One for Your Child
- Stelmock Law: Guardian Ad Litem (GAL)
- Michigan Legistlature: Estates and Protected Individuals Code: 700.5207 Review of Guardianship of Minor
- Michigan Legislature: 700.5204 Court Appointment of Guardian of Minor; Conditions for Appointment.
- Michigan Legislature: 700.5215 Powers and Duties of Guardian of Minor
- Children's Bureau: An Office of the Administration for Children & Families: What Does It Mean to Be a Legal Guardian; Where Can I Find Information?
- Kershaw, Vititoe & Jedinak, PLC: What Are the Grounds for Obtaining Guardianship of a Minor in Michigan?
- Livingston County: Probate Court Fees
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.