1
NEW PROBATE REGISTER ORIENTATION
MINOR
GUARDIANSHIPS
2021
2021
• The basics of Minor Guardianship
• Temporary Minor Guardianship
• Full Minor Guardianship
• Limited Minor Guardianship
• Custody Actions
• Indian Child Welfare Act and the Michigan
Indian Family Preservation Act.
• The role of DHHS in Guardianship matters
LEARNING/
TRAINING
OBJECTIVES
2
2021
• The guardianship of a minor is used to grant
legal authority to someone other than the
custodial parent.
• Reasons
• Termination or suspension of parental rights
• By prior court order
• By judgment of divorce or separate maintenance
• By death
• By judicial determination of mental incompetency
• By disappearance
• Or by confinement in a place of detention.
• The parent or parents permit the minor to
reside with another person but fail to
provide legal authority.
REASONS FOR A
MINOR
GUARDIANSHIP?
MCL 700.5204
2021
• The minor’s biological parents have never
been married to one another
• The minor’s parent who has custody of the
minor dies or is missing and there is no
existing court order granting legal custody.
• The person whom the petition to be
appointed guardian is related to the minor
within the fifth degree by marriage, blood
or adoption.
• The custodial parent consents to the
guardianship.
reasons
continued…
3
2021
• Take reasonable care of the minor’s
property.
• Receive money for the minor’s care.
• Facilitate the minor’s education,
social activities, and medical care.
• Additionally…
• Guardians should work with the parents to
facilitate reunification, and cooperate
with a court structured plan if one is in
place.
MCL 700.5215
POWERS AND DUTIES
2021
• Delegation of Powers
• By a properly executed power of attorney,
a parent or guardian can delegate
powers to another person, for a period not
exceeding 180 days. This covers the
following powers over:
• CARE
• CUSTODY
• PROPERTY OF THE MINOR CHILD
• Under a POA they can not consent to
marriage, adoption, or to release the
minor for adoption.
ALTERNATIVES TO
GUARDIANSHIP
MCL 700.5103(1)
4
2021
• The Probate Court has jurisdiction
over all minor guardianships.
• Except for Juvenile Guardianships which fall under the
Juvenile Code.
• The Indian Child Welfare Act and the Michigan Indian Family
Preservation Act govern any action removing an Indian child
from a parent or Indian Custodian. (more on this later)
• A petition SHOULD be filed in the
County where the child resides or is
found.
JURISDICTION AND
VENUE
MCL 700.1301
2021
Any person interested in the
welfare of the minor, or the
minor if they are 14 years or
older.
• Close family members
• An agency
• Family friend
• Limited guardian
• Not based on suspension of
parental rights from prior limited
petition.
WHO CAN FILE A
PETITION?
MCL 700.5204(1)
5
2021
• Total filing fee: $175.00
• FULL/ LIMITED/ TEMPORARY INCLUDED
• $150.00 - MCL 600.880a(1)
• $25.00 – MCL 600.1986(1)(a)
• Electronic filing fee
• If submitted with MC20 – Fee Waiver Request
• $0.00 – MCR 2.002
INITIAL FILING FEES/
FEE WAIVER REQUEST
2021
• Petition for Appointment of Guardian of Minor.
• Form PC651 if non-parent files (MCL 700.5204, MCL 700.5213,
MCR 5.125(C)(19), MCR 5.404.
• Petition for Appointment of Limited Guardian of
Minor
• Form PC650 if the custodial parent(s) files (MCL 700.5205,
MCR 5.125(C)(19), MCR 5.404)
• Limited Guardianship Plan - PC670 (MCL 700.5205(2), MCR
5.404(A),(B)
• PC652 Must be signed by custodial parent(s) and proposed
guardian.
• Filing Fee
• Minor Social History
• PC670 is kept confidential in file. (MCR 5.404(A)(4)
• DHHS Central Register Clearance/ Copy of Picture
Identification.
• DHS-194 is kept confidential. (MCL 722.627-722.627j)
• Criminal Background Check on anyone 18+ in the
home.
CHECK LIST FOR MINOR
GUARDIANSHIP FILINGS
6
2021
• Birth Certificate is required if the father is unknown
(Paternity has not been established)
• Death Certificate is required if a parent is
deceased.
• Copy of Order Terminating Parental Rights – if
applicable.
These may be required
depending on a specific
situation.
MISCELLANEOUS
DOCUMENT
2021
• The minor, if 14 or older
• Anyone who has had principal care and custody
of the minor during the previous 63 days
• The parents of the minor
• If the parents are deceased, any
grandparents and presumptive adult heirs.
• Attorney general – if no known heirs
• Proposed Guardian
• Guardian/ Conservator from another state if one
is appointed.
• Guardian ad litem, attorney, or fiduciary.
• A person could file a request for notice with the
register of the court, and the attorney of a
guardian if one has filed an appearance in the
matter. MCL 700.5104(1)
• If the minor receives Veterans Affairs benefits , the
Office of Veterans’ Affairs must be notified.
MCR 5.125(A)(B)(C)(20)
ONCE A PETITION IS
FILED, WHO SHOULD
BE NOTIFIED?
7
2021
• Notice of Hearing Must Contain:
• Time
• Date
• Place
• Nature of hearing
• Time guidelines
• First Class – 14 days prior to the hearing
• Personal – 7 days prior to the hearing
• Electronic – 7 days prior to the hearing
• Please see MCR 1.109(G)(6)(a)
• Notice can be waived (PC561).
• MCR 5.104(B)(1)
MCR 5.102
NOTICE OF HEARING
(PC562)
2021
• FOR GOOD CAUSE…
• The court can shorten or eliminate notice (except to the
minor if they are 14 or older).
• A Probate Court can even sign a temporary order ex-parte.
• IF A TEMPORARY GUARDIAN IS ENTERED WITH
SHORTENED OR ELIMINATED SERVICE THE COURT
MUST.
• Send notice of the guardianship proceeding to all interested
parties, including SCAO form PC 672 – NOTICE OF
APPOINTMENT OF TEMPORARY GUARDIAN FOR A MINOR AND
OF RIGHT TO OBJECT.
• If an objection is received you are required to hold a hearing
within 14 days of the objection.
• Best Practice – Even in the event that notice is not given for the
temporary hearing we will hold a hearing 99.9999% of the time so
that we can have testimony on the record. As you may learn or are
already aware of, once someone testifies in court the facts of the
petition may not match up….
MCR 5.403 (B)
SHORTENED
NOTIFICATION FOR A
TEMPORARY
GUARDIANSHIP
HEARING
8
2021
• PUBLICATION OF NOTICE OF HEARING
• PC 563
• REQUIREMENTS
• A NOTICE OF HEARING OR OTHER NOTICE
REQUIRED TO BE MADE BY PUBLICATION MUST
BE PUBLISHED IN A NEWSPAPER AT LEAST 14
DAYS PRIOR TO THE HEARING.
• CONTENTS
• IT MUST CONTAIN THE NAME OF THE INTERESTED
PARTY WHO CAN NOT BE FOUND, AND THAT A
RESULT OF THE HEARING MAY AFFECT THE
PERSON’S INTEREST IN THE MATTER, AS WELL AS
THE DATE, TIME, AND LOCATION OF THE
HEARING.
NOTICE BY
PUBLICATION
MCR 5.106
2021
PUBLICATION OF
NOTICE OF HEARING
Approved, SCAO JIS CODE: P NH
STATE OF MICHIGAN
PUBLICATION OF NOTICE OF HEARING
FILE NO.
PROBATE COURT
2021-0084 GM
COUNTY OF ST. CLAIR
In the matter of LAYLA ANN MARIE DARBY, a minor
TO ALL INTERESTED PERSONS including: STEVEN DARBY and JENNA SHARROW
whose address(es) is/are unknown and whose interest in the matter may be barred or affected by the following:
TAKE NOTICE: A hearing will be held on MONDAY, MAY 24, 2021 at 10:20 A.M.
Date Time
at 201 McMorran Blvd. Room 2600 Port Huron, MI 48060 before Jud
g
e JOHN D. TOMLINSON P-45917
Location Bar no.
for the following purpose:
ON THE ATTACHED PETITION FOR APPOINTMENT OF GUARDIAN OF MINOR, FILED BY
KELSIE WAGAR, PRAYING THE COURT APPOINT HERSELF AS THE GUARDIAN OF THE
ABOVE NAMED MINOR.
MUST BE PRESENT AT HEARING:
KELSIE WAGAR, PETITIONER / PROPOSED GUARDIAN
JENNA SHARROW, MOTHER
STEVEN DARBY, FATHER
KRISTINA FRALEY, GUARDIANSHIP INVESTIGATOR / DHHS LIAISON
YOU HAVE THE ABILITY TO APPEAR IN PERSON, BY TELEPHONE, OR BY ZOOM VIDEO CONFERENCE – SEE
ATTACHED INSTRUCTION SHEET. PLEASE CONTACT THE COURT AT (810) 985-2066 AT LEAST TWO (2) DAYS
PRIOR TO THE HEARING TO INDICATE HOW YOU INTEND TO APPEAR.
MARCH 2
,
2021
Date
KELSIE WAGAR
Attorney name (type or print) Bar no.
Petitioner name (type or print)
689 RICHMAN ROAD
Address Address
KIMBALL, MI 48074 810-367-6147
City, state, zip Telephone no. City, state, zip Telephone no.
PUBLISH ABOVE INFORMATION ONLY
Publish 1 time(s) in THE TIMES HERALD in ST. CLAIR County.
Name of publication
Furnish copies to .
Furnish affidavit of
p
ublication to the court
,
201 McMorran Blvd.
,
Room 2600
,
Port Huron
,
MI 48060
Forward statement for publication charges to
St. Clair County Probate Court, 201 McMorran Blvd., Room 2600, Port
Huron, MI 48060 - Acct. Number LSJ-152066PT - FEE WAIVER .
USE NOT E: If this form is being filed in the circuit court family division, please enter the court name and county in the upper left-hand corner of the form.
Do not write below this line - For court use only
MCL 700.1401(1), MCL 700.3403, MCL 700.5405,
MCR 5.105(A)(3), MCR 5.106, MCR 5.30 8(B)(2)(b)
PC 563 (9/12)
PUBLICATION OF NOTICE OF HEARING
9
2021
• The following process is required if an
interested party is incarcerated.
• Contact the department of corrections.
• Confirm the incarceration, prisoner number,
and location of inmate.
• Serve the incarcerated individual.
• Prepare MC 286, requesting the Department of
Corrections to allow the interested party to
participate in the hearing either by telephone
or video.
MCR 2.004
NOTICE FOR
INCARCERATED
INTERESTED PARTIES
2021
• A Proof of Service must be filed indicating
the documents served, the date of service,
the manner and method of service, the
person or persons served prior to a hearing.
MCL 700.1401, MCL 700.1306, MCR
5.104(A), MCR 5.105, MCR 5.107
PROOF OF SERVICE
(PC 564)
10
2021
• When preparing a file for your Judge the
documents needed in the file for an initial
hearing are as follows:
• PC653 – ORDER REGARDING APPOINTMENT OF
GUARDIAN/ LIMITED GUARDIAN OF A MINOR
• MCL 700.5106, MCL 700.5204, MCL 700.5212, MCL 700.5213, MCR
5.402(E)
• PC571 – ACCEPTANCE OF APPOINTMENT
• NEEDS TO BE SIGNED PRIOR TO ISSUING LETTERS OF GUARDIANSHIP
• MCL 700.5214
• PC633 – LETTERS OF GUARDIANSHIP
• MCL 700.5214
DOCUMENTS IN THE
FILE FOR THE
HEARING.
2021
• If there is no guardian previously appointed
(no open case)
• The court receives a petition specifying why
a temporary guardian is necessary.
• If a petition for a temporary guardian follows
a petition for the appointment of a limited
guardian, the court must take into
consideration the limited guardianship
placement plan, and how that relates to
powers being granted to guardian during
the duration of the temporary guardianship.
• If a guardian is in place but not fulfilling their
obligation, the court can appoint a
temporary guardian.
• In both situations the appointment may not
last longer than 6 months.
Under MCL 5.403(D), the Probate
Court has the authority to
appoint a temporary guardian
for a minor child if the following
requirements have been met.
TEMPORARY
GUARDIANSHIP
11
2021
• The Probate Court can appoint a temporary
guardian through application if the following
are met:
• A guardianship has not been established in
Michigan.
• The proposed guardian files an Application
and order for Appointment of Out-of-State
Guardian of a minor (PC 684).
• An authenticated copy of the guardians’
appointment from the other State.
• An acceptance of appointment.
MCL 700.5202a
TEMPORARY GUARDIAN
APPOINTMENT FROM
ANOTHER STATE.
2021
• The letters of guardianship should expire in 28
days.
• The guardian shall send notice to all
interested parties within 14 days of the
appointment.
• Once the guardian files the proof of service
with the court, the temporary guardian shall
be appointed full guardian.
• If an objection is filed, the temporary
guardianship continues unless a court in this
state enters an order removing the guardian.
TEMPORARY GUARDIAN
APPOINTMENT FROM
ANOTHER STATE.
12
2021
• A FULL GUARDIANSHIP CAN ONLY BE
ESTABLISHED IF THE FOLLOWING TERMS HAVE
BEEN MET..
• Parental rights of the parents have been
terminated or suspended by prior court order,
by a judgement of divorce or separate
maintenance, by death, by judicial
determination of mental incompetency, by
disappearance, or by confinement in a place
of detention.
• The parent(s) permit the minor to reside with
another person and do not provide the other
person with legal authority for the minor’s care
and maintenance, and the minor is not residing
with the parent or parents when the petition is
filed.
• The custodial parent dies or disappears, never
having married the other parent, and the other
parent has not been granted legal custody.
MCL 700.5204(2)
FULL GUARDIANSHIP
OF A MINOR
2021
• Only the custodial parent or parents
are able to file the petition for the
appointment of a limited guardian.
• MCL 700.5305(1)
• The court may appoint a limited
guardian if…
• The custodial parent(s) consent to the
appointment.
• The parent(s) consent to the suspension of
their parental rights.
• The limited guardianship plan is approved
by the court.
• MCL 700.5206(c)
• MCL 700.5205
LIMITED
GUARDIANSHIP
13
2021
• What needs to be included in the
limited guardianship placement
plan? MCL 700.5205(2); MCR 5.404(E)(1)
• The reason for the limited guardianship.
• Parenting time requirements.
• How long will the limited guardianship last.
• Who will be providing financial support for
the minor child.
• Other possible stipulations.
MCL 5.404(E)(b)
• Substance Abuse Treatment
• Parenting classes
• Obtaining housing
LIMITED
GUARDIANSHIP
PLACEMENT PLAN
PC 652
2021
• The parties can modify the plan
without filing a petition. MCL 700.5206(2)
• The court must review the proposal within
14 days.
• If the court approves the modification, it
will be endorsed and all parties will be
notified.
• If the court does not approve the
modification, a hearing can be set, or a
new plan can be submitted.
• MCR5.404(E)(3)
LIMITED
GUARDIANSHIP
PLACEMENT PLAN
14
2021
• The parent of an unmarried minor may
appoint a guardian for the minor by Will or
another writing signed by the parent and
attested by at least 2 witnesses.
• If by Will, the acceptance should be filed where the
Will has been probated.
• If by a nontestamentary instrument, the acceptance
should be filed where the minor is located.
• If the minor is 14 years or older they have the
right to object prior to the appointment or 28
days following the appointment.
• MCL 700.5203
MCL 700.5202
APPOINTMENT OF A
FULL GUARDIAN
THROUGH A WILL
2021
• The Probate Court can review a
minor guardianship as it sees fit.
• An annual review of a guardianship
MUST be done if the minor child is 6
years old or younger.
• MCL 700.5207
• The review is completed on PC 655
and submitted to the court.
REVIEWS
15
2021
• A review may consist of an informal
review of the report submitted.
• A hearing on the report may be
scheduled and set within 28 days.
• MCR 5.404(G)(3)
REVIEW
2021
• FACTORS FOR THE REVIEW
• Compliance by the parent(s)and
guardian with a court structured plan.
• Welfare of the minor child.
• Should the guardianship continue?
• Willingness of guardian to continue.
• Ability of guardian to continue.
• Effect on the minor’s wellbeing if continued.
• MCL 700.5207(1)
REVIEW
16
2021
• The guardian of a minor child is required to
report to the court on a yearly basis on the
condition of the minor. This report will detail
Living Arrangements, Health, Education,
Social aspects of the minor’s life, and
interactions between parents.
MCL 700.5215(f), MCR 5.409(A)
ANNUAL REPORT OF
GUARDIAN ON
CONDITION OF MINOR
(PC 654)
2021
• The minor’s parent or parents may file
a petition to terminate the
guardianship(PC 675)
• The court may do any of the following
• Order DHHS, or a court employee to conduct and
investigation and file a written report with the
court prior to the hearing.
• Take into account any recommendation from
other professionals involved with the minor child.
• Appoint a Guardian Ad Litem, Or Lawyer
Guardian Ad Litem to represent the minor.
MCL 700.5208, MCL 700.5209
TERMINATION OF
MINOR
GUARDIANSHIP
17
2021
• The court has several options when
terminating a guardianship.
• Enter an order terminating the
guardianship and restoring parental rights.
• Enter orders to reintegrate the minor into
the home for up to 6 months.
• Order DHHS/ Family Independent Agency
to supervise the transition period.
• Order DHHS/ Family Independent Agency
to provide services during the transition
period.
MCL 700.5209
TERMINATION OF
MINOR
GUARDIANSHIP
2021
• The court can appoint a court
employee, DHHS, or any other person
to investigate any matter in a minor
guardianship
• If the court appoints DHHS to preform an
investigation it will be assigned to
protective service or foster care staff.
• The investigator must file a report 28 days
following the appointment.
• MCR 5.404(G)(2)
INVESTIGATION
18
2021
• The Full or Limited guardian does
have standing to bring an action for
custody of a child.
• Unless the parents have been compliant
with the limited guardianship plan.
• The custody action must be brought
in the family division of the circuit
court of the county where the
guardianship was established.
• When a custody action is filed it stays
the guardianship case.
MCL 722.26b
STANDING TO
SEEKING CUSTODY
2021
• The St. Clair County Probate Court
has a shared funds position with DHHS
• The DHHS court liaison is appointed on all
new guardianships for an initial
investigation, as well as appointed on any
petition to terminate or modify the
guardianship.
SHARED FUNDS
POSITION
19
2021
• Attorney Client Privilege Applies
• MCL 712A.17d(1)(a)
• The LGAL represents the child not the
court.
• MCL 712A.17d
• Additionally, the LGAL is tasked with taking
into account the best interest of the minor,
as well as the opinion of the minor child.
• MCL 712A.17d(1)(i) – MCL 712A.17d
• The LGAL report may be filed with the
court, and not entered into evidence
unless all parties agree.
• MCL 700.5213(5)(a)
If the Court determines the
minor’s rights are not being
represented you can appoint a
Lawyer-Guardian Ad Litem.
MCL 700.5213(3)
LAWYER-GUARDIAN
AD LITEM
2021
• Indian child welfare act and the
Michigan Indian family preservation
act.
• ICWA and MIFPA apply to any child
custody proceeding involving an Indian
child being removed from their parent or
Indian Custodian and they can not have
the child returned on demand.
GUARDIANSHIP
PROCEEDINGS INVOLVING
AN INDIAN CHILD
20
2021
• Involuntary Proceedings
• Procedural requirements of MCL 700.5204
and .5205 apply.
• Included on the petition for the involuntary
appointment of a guardian of an Indian
child (PC651-Ib) must be the efforts made
to prevent the break up of the Indian
family. (MCR 5.404(B)(3))
GUARDIANSHIP
PROCEEDINGS
INVOLVING AN INDIAN
CHILD
2021
• Voluntary proceedings
• If the parent(s) or Indian custodian
consent to the guardianship it must be
submitted in writing (PC686)
• This consent can be withdrawn at any
time using (PC 687).
• A hearing must be held to determine if the
tribe has exclusive jurisdiction that will result
in the dismissal of the petition, and if valid
consent was obtained. (MCL 712B.13)
GUARDIANSHIP
PROCEEDINGS
INVOLVING AN INDIAN
CHILD
21
2021
• If the court receives a Petition for
Appointment of Guardian of Minor (PC651)
The Court should do the following
..
• If item number 5 or the second box in item 3 is
marked, indicating that the child is a member of an
American Indian tribe, check to see if the tribe is
listed on the petition.
• If one is listed, the court shall notice the tribe on all
court proceedings.
• If no tribe is listed, the court should ask the petitioner
to amend the petition to identify the specific tribe or
report that the tribal affiliation is unknown.
• Once a guardian is appointed the court should
appoint an LGAL or DHHS to investigate the
placement, including the child’s tribal affiliation.
• If the court feels it is in the best interest to appoint a
temporary guardian for the minor, it can, but steps
should be taken by the court to determine the
whereabouts of the parents, and the tribal affiliation.
GUARDIANSHIP
PROCEEDINGS
INVOLVING AN INDIAN
CHILD
2021
• Right to Intervene
• The Indian child, parent(s), Indian
custodian, or tribe can intervene at
any point in a guardianship
proceeding. (25 USC 1911(c); MCL
712B.7(6); MCR 5.402(E)(4).
• Written motion not required.
• If the tribe intervenes it does so as an
independent entity.
GUARDIANSHIP
PROCEEDINGS
INVOLVING AN INDIAN
CHILD
22
2021
• If an Indian Child is identified in a guardianship
proceeding the court has specific requirements for
noticing as specified in MCR 5.109.
• (1) in addition to any other service requirements, the
petitioner shall notify the parent or Indian custodian and the
Indian child’s tribe, by personal service or by registered mail
with return receipt requested and delivery restricted to the
addressee, of the pending proceedings on a petition to
establish guardianship over the Indian child and of their right
of intervention on a form approved by the State Court
Administrative Office. If the identity or location of the parent
or Indian custodian, or of the Indian child’s tribe, cannot be
determined, notice shall be given to the Secretary of the
Interior by registered mail with return receipt requested. If a
petition is filed with the court that subsequently identifies the
minor as an Indian child after a guardianship has been
established, notice of that petition must be served in
accordance with this subrule.
• (2) the court shall notify the parent or Indian custodian and
the Indian child’s tribe of all other hearings pertaining to the
guardianship proceeding as provided in MCR 5.105. If the
identity or location of the parent or Indian custodian, or of
the Indian child’s tribe, cannot be determined, notice of the
hearings shall be given to the Secretary of the Interior. Such
notice may be made by first-class mail.
GUARDIANSHIP
PROCEEDINGS
INVOLVING AN INDIAN
CHILD
2021
• If a minor is determined to be an Indian Child
after a guardianship is in place, the court
must..
• Schedule a hearing in accordance to MCR
5.404(C)(F)
• Enter an order for investigation in accordance
to MCR 5.404(A)(2)
• The guardian must cooperate with the investigation.
• Provide notice in accordance to MCR 5.109(1).
GUARDIANSHIP
PROCEEDINGS
INVOLVING AN INDIAN
CHILD
23
2021
• Michigan Probate Bench Book
• Michigan Guardianship and
Conservatorship Hand Book
• Estates and Protected
Individuals Code
• Indian Child Welfare Act of
1978: A court resource guide.
RESOURCES
2021
MATERIAL PREPARED AND PRESENTED BY:
Joseph Schulte
St. Clair County Probate Court
Probate Register
Port Huron
(810) 985-2176
Jschulte@stclaircounty.org
Minor
Guardianships
