One of the most frequent inquiries I receive are from potential clients who wish to seek legal guardianship of a child whose welfare is believed to be at risk. However, merely expressing concern that a child may not be safe is not, in and of itself, sufficient to create a minor guardianship. There are several factors, all enumerated in the Michigan minor guardianship statute (MCL §700.1101 et seq.) that must be evaluated to determine whether a petition to appoint a minor guardianship may be filed.
Before discussing those factors, I do wish to issue a cautionary note. If you believe that the safety and welfare of a child is at imminent risk (e.g., you have evidence or a reasonable belief that a child is being victimized by physical or sexual abuse or is being neglected by starvation or other means) guardianship should not be at the top of your “to do” list for the child. You should immediately contact your local law enforcement authorities and/or Child Protective Services. By the way, a call to Child Protective Services can be made anonymously. A guardianship for the child can and should be explored only after the child is in a safe place and no longer subject to abuse or neglect, even if it means temporary foster care.
A court will consider granting guardianship of a minor if the child’s welfare will be served by the appointment of a guardian. Typically, a guardian is appointed for a child when both parents are unable or unwilling to care for the child. The court has the discretion to appoint a guardian only under the following circumstances:
- The parental rights of the parents have been previously suspended by a court order; or
- The parents have permitted a child to live with a third party without granting the third party legal authority over the child’s care; or
- The child’s parents have never been married to each other, the custodial parent dies or is missing and the other parent does not have a court order granting him/her legal custody of the child, and the petitioner seeking guardianship is related to the child by marriage, blood or adoption.
As long as the one of the above situations exists, any person may seek the full guardianship of a child and if the court deems it to serve the child’s welfare, the person may be granted a guardianship.
However, there are several forms of guardianship, including temporary, limited and full guardianship. A temporary guardian may be appointed by the court until the judge has an opportunity to rule on the guardianship petition. A temporary guardianship might also result if a current guardian is found to be failing in the proper exercise of his/her duties to the minor child and to the court.
Unlike a full guardianship, only the custodial parent or parents of a child may petition the court to appoint a limited guardian. A limited guardianship requires the temporary suspension of parental rights by the consent of the custodial parent(s) and the court must approve a limited guardianship placement plan. Typically, a limited guardianship placement plan is one that provides for the custodial parent(s) to rehabilitate whatever situation prevents proper care for the child, whether it is illness, drug addiction, criminal activity or other problem. Typically, a limited guardianship placement plan includes provisions for parenting time to the custodial parent(s) to pay child support or otherwise contribute to the financial support for the child by the parent(s). The goal is reuniting the child with the custodial parent(s) but if a parent is unable or unwilling to successfully complete the limited guardianship placement plan, a full guardianship may eventually result.
In addition to working through the determination whether a guardianship is appropriate, and if so, what kind, the forms and documentation that must be prepared for the court can present a daunting and technical task. I strongly recommend that you retain an attorney to assist you if you plan to file a petition for a minor guardianship. In addition to working through the legal and technical aspects of a minor guardianship, there are annual reports and ongoing standards that must be met to comply with the requirements imposed on a guardian. The failure to properly adhere to these requirements can result in the removal of a guardian by the court.
Notably, a full guardian or a limited guardian of a minor has standing under the Michigan Child Custody Act to seek full legal and full physical custody of the minor child who is his/her ward (MCL §722.26b).