[ Previous Page] [ Home Page ]
The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5782 September 17, 1980 COURTS, PROBATE: Jurisdiction to grant guardianships over minor or minors GUARDIAN AND WARD: Consent of parents for minor ward A probate court may not appoint a temporary guardian of a minor person upon consent of parents alone without making a finding after examining the attendant facts and circumstances surrounding execution of the consent that parental rights of custody have been suspended. Honorable R. Robert Geake State Senator The Capitol Lansing, Michigan 48909 You have requested my opinion on a question which may be stated as follows: May a probate court appoint a guardian for an unmarried minor based solely on the consent of the parents of such minor to such appointment? Probate courts in this state are created by Const 1963, art 6, Sec. 15, but derive their jurisdiction, powers and duties from the Legislature. In re Estate of Clayton, 320 Mich 152; 30 NW2d 816 (1948). Jurisdiction over the appointment of guardians is vested in the probate court pursuant to the Revised Probate Code, 1978 PA 642; MCLA 700.1 et seq; MSA 27.5001 et seq, Sec. 21, which states, in pertinent part: 'The court has exclusive jurisdiction of all of the following: '(d) Appointment of a guardian, limited guardian, or conservator in cases prescribed by law, resolution of any contested matter in respect to the estate or ward, and settlement of the estate.' The term 'guardian' is defined in the Revised Probate Code, supra, Sec. 6(2), as last amended by 1979 PA 51, as follows: '(2) 'Guardian' means a person appointed by the court or designated as such in a will as provided in article 4, to exercise powers over the person of a minor or of a legally incapacitated person. Guardian does not include a guardian ad litem.' The powers and responsibilities of a guardian of a minor are, in relevant part, set forth in the Revised Probate Code, supra, Sec. 431, as follows: 'A guardian of a minor has the powers and responsibilities of a parent who is not deprived of custody of the parent's minor and unemancipated child, except that a guardian is not legally obligated to provide from the guardian's own funds for the ward and is not liable to third persons by reason of the parental relationship for acts of the ward. . . .' The Revised Probate Code, supra, Sec. 421, states: 'A person becomes a guardian of a minor by acceptance of a testamentary appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.' In the Revised Probate Code, supra, Sec. 433, the Legislature has further provided: 'A guardian's authority and responsibility terminate upon the death, resignation, or removal of the guardian or upon the minor's death, adoption, marriage, or attainment of majority. . . .' Where necessary, the court may appoint a temporary guardian whose authority shall not exceed six months. Revised Probate Code, supra, Sec. 427(3). The probate courts are limited in their authority to appoint guardians. The Revised Probate Code, supra, Sec. 424, provides as follows: 'The court may appoint a guardian for an unmarried minor if the parental rights of custody are terminated or suspended by circumstances or prior court order. A guardian appointed by will as provided in section 422 whose appointment is not prevented or nullified under section 423 has priority over a guardian who may be appointed by the court. The court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary appointment within 30 days after notice of the guardianship proceeding.' [Emphasis supplied.] Based on the foregoing sections of the Revised Probate Code, supra, it is clear that no person may become a guardian of a minor except by acceptance of a testamentary appointment or upon appointment by the probate court, and that the latter appointment may not be made unless the parental rights of custody have been terminated or suspended by circumstances or by prior court order as determined by the probate court. Jurisdiction to terminate parental rights is vested in the probate court, juvenile division, pursuant to 1939 PA 288, ch 12A, added by 1944 1st Ex Sess PA 54, MCLA 712A.1 et seq; MSA 27.3178(598.1) et seq. 1939 PA 288, ch 12A, supra, Sec. 2(b) provides that the probate court, juvenile division, has jurisdiction for the termination of parental rights as to children under 17 years. Pursuant to that authority, the court may issue an order placing the child in temporary custody of the court, and after hearing, may make the custody permanent. Such permanent order, in effect, terminates all parental rights. 1939 PA 288, ch 12A, supra, Sec. 18. Further provision for termination of parental rights is found in the Michigan Adoption Code, 1939 PA 288, supra, ch 10, as last amended by 1980 PA 116, MCLA 710.21 et seq; MSA 27.3178(555.21). The Revised Probate Code, supra, Sec. 424, permits the appointment of a guardian of an unmarried minor 'if the parental rights of custody are terminated or suspended by circumstances or prior court order.' The 'prior court order' must be obtained as described above. The Revised Probate Code, Sec. 424, supra, has its source in the Uniform Probate Code. (1) The official comment under this particular section does not define the meaning of the phrase 'or suspended by circumstances.' Research discloses that in the 12 states, in addition to Michigan, which have adopted this provision of the Uniform Probate Code, there are no cases which have interpreted this phrase. The Revised Probate Code, supra, Sec. 405, provides for a temporary delegation of parental control by virtue of a power of attorney: 'A parent or a guardian of a minor or legally incapacitated person, by a properly executed power of attorney, may delegate to another person for a period not exceeding 6 months, any of the parent's or guardian's powers regarding case, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward and the power to release a minor for adoption.' The Revised Probate Code, Sec. 405, supra, relates only to the temporary delegation of parental custodial powers by means of power of attorney, and in no way constitutes the creation of a guardianship. OAG, 1979-1980, No 5574, p ___ (September 18, 1979). Such a power of attorney is revocable at will and limited to a specific time. The delegation of parental custodial powers under this section would not serve, by itself, and in the absence a court finding parental rights suspended by circumstances, as a basis for the probate court to suspend or terminate parental rights or to appoint a guardian. Although the precise issue of consent to a guardianship has not been decided in this state, the decision in In re Gould, 174 Mich 663; 140 NW 1013 (1913), is instructive. In a companion prior action, Graham v Ingham Probate Judge, 171 Mich 540; 137 NW 223 (1912), the grandparents sought to raise the child of their deceased daughter and her husband, the latter having left the child with the grandparents without financial support. The grandparents attempted to become legal guardians of the child, alleging the child was neglected, after the child's aunt asked the child be allowed to visit her and then refused to return him. The probate court found that under the controlling statute the child was not legally dependent or neglected. The circuit court and Supreme Court affirmed. Subsequently, in In re Gould, supra, the grandparents sought review of a writ of habeas corpus issued by the Ingham County Circuit Court, where the aunt alleged that she had, in fact, legally adopted the child in Wayne County Probate Court, based on the written consent of the father to the adoption proceeding. The circuit court had ordered the grandparents to surrender the child to the putative adoptive parents, and the grandparents then sought a writ of certiorari from the Michigan Supreme Court. The Court, in reversing the circuit court opined: '. . . The father now personally makes no claim to his son, and could not. So far as he has asserted himself at all, he has declared he does not want him by signing consent to his adoption and forever foreclosing all paternal rights. The only figure he cuts in this contention is to assert himself to the extent of assigning what might be likened to a chose in action for his son to petitioner, and leaving it to her to litigate and make the most of. By merely signing the common form of consent to adoption, he is attempting to take his offspring from one doorstep and drop him on another; to take him from a proven home where he once left him, and where the testimony shows he was tenderly cared for and nutured during his early childhood, and transfer him to another, possibly equally good, but new and untried. The father's legal and equitable rights, if equity is to be thought of in that connection, are limited, so far as the proofs show, to having begotten the child in lawful wedlock. All the rights the petitioner [Aunt] has come to her from the father and can be no greater than he had. 'Prima facie' the father was, and by the adoption to which he consented petitioner is, entitled to the custody of the child. The law recognizes the rights of the father because it recognizes the natural duties and obligations of the father. The father's right to and authority over his child are secure and inviolable so long as he properly discharges the correlative duties. 'But the absolute power of the father over his infant children, to treat them as property and dispose of them as he sees fit because they are his, which was once recognized under the Roman law of patria potestas and in the codes of early nations, no longer obtains. Paternal authority is subordinate to the supreme power of the State. Every child born in the United States has, from the time it comes into existence, a birthright of citizenship which vests it with rights and privileges, entitling it to governmental protection-- "And such government if obligated by its duty of protection, to consult the welfare, comfort, and interests of such child in regulating its custody during the period of its minority.' Mercein v. People, 25 Wend. (N.Y.) 64 (35 Am. Dec. 653). 'The power of parental control, though recognized as a natural right and protected when properly exercised, is by no means an inalienable one. When the 'right of custody' is involved between respective claimants for a child, the courts, though in the first instance recognizing prima facie rights of relationship, in the final test are not strictly bound by demands founded upon purely technical claims or naked legal rights, but may and should, in making the award, be governed by the paramount consideration of what is really demanded by the best interests of the child. . . .' (Citations omitted) 171 Mich 663, 669-670; 140 NW 1013, 1015. Thus, the State itself has an interest in the welfare of the child and a duty to consider the factual basis of a petition for guardianship in order to determine if the requirements of the Revised Probate Code, Sec. 424, supra, have been met. This determination would never come before the probate court if guardianship may be achieved merely by having all parties consent to it. As stated by the Court in Re re Gould, supra, when parental rights of custody are not clear or imperative '. . . the best interests and happiness of the child must always control the decision of the court.' 174 Mich 663, 673. The interest of the State is separate from that of the parent. The probate court, as stated above, has no authority to terminate or suspend parental rights except as provided under the Michigan Adoption Code, supra, or by 1939 PA 288, ch 12A, supra. A guardianship proceeding places a child under the protection of the probate court and the court oversees the actions of the guardian in order to protect the interests of the child. It is, therefore, my opinion that a probate court may not appoint a temporary guardian of a minor person upon consent of parents alone without making a finding after examining the attendant facts and circumstances surrounding execution of the consent that parental rights of custody have been suspended. Frank J. Kelley Attorney General (1)
[ Previous Page] [ Home Page ]