Probate Court Lacks Authority to Order Visitation in Minor Guardianship

By Doug Chalgian on March 16, 2024

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When mother of minor child A disappears, father discontinues contact between minor child A and the siblings of A who were children of the missing mother. When father is sent to jail (having been charged with murdering mother), he nominates one of his adult children (a sibling of A) to serve as A’s guardian, and provides that same adult child a parental delegation of authority (power of attorney) over A.

An adult sibling of A who is a child of A’s mother, but not of A’s imprisoned father, petitions for guardianship over A.

The probate court appoints the adult child of the imprisoned father as guardian over A, and orders that said guardian arrange for visitation between A and A’s siblings who are the children of A’s mother.

That order is appealed by the imprisoned father.

Timing

Much of this case has to do with when and how the imprisoned father provided parental authority to his adult child.

The COA seems to agree that had the father simply delegated parental authority to his adult child in a power of attorney before the petition for minor guardianship was filed, the probate court would have lacked jurisdiction to become involved.

But the facts are otherwise.

Although the father signed the document nominating his adult child as A’s guardian before the petition for guardianship was filed, the parental delegation/power of attorney was not executed by him until five days after the filing of the guardianship petition.

The COA held that once that petition was filed, the probate court obtained jurisdiction over A, and the subsequent signing of the power of attorney did not undo that jurisdiction or cause the case to become moot.

Accordingly, the COA affirms the appointment of the imprisoned father’s adult child as A’s guardian.

Visitation

Citing numerous authorities, the COA holds that a probate court has no power to order visitation in a minor guardianship (other than under the narrowly limited provisions of Michigan’s grandparent visitation laws).

However, the COA notes, a probate court has authority to remove a guardian who fails to facilitate healthy socialization in the context of the minor’s welfare, which could include undermining healthy familial ties such as seem to exist between A and her siblings from her mother’s side. Hence (wink wink), the COA observes that this concern could be addressed by the probate court in a subsequent review hearing.

Thus, the portion of the order requiring the guardian to arrange visitations with the siblings from mother’s side is reversed.

In Re ADW, minor is a published opinion from the Michigan Court of Appeals.  Click on the name to read the case.

 

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mm By: Doug Chalgian
Doug Chalgian

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