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I’ve been struggling with a question regarding guardianship petitions in the probate court. Do minor guardianship petitions relate back in time to the date of filing (as juvenile petitions would for jurisdiction)? I’ve done considerable research but have been unable to find a case or statute on point. My thinking is that the court will examine the facts at the time of the hearing and not at the time of the filing of the petition.
This could come up in a couple of cases: (1) where one parent dies and the other parent was incapacitated when the petition was filed, but the incapacitated parent regained capacity, or (2) where the parent with custody dies and the other parent obtains an order granting custody after the filing of the guardianship petition.
Minor guardianship petitions relate back in time to their filing date for the purposes of determining whether the criteria for appointment (i.e., jurisdiction, venue, basis for guardianship) appear to have been satisfied so the pleading may be accepted. However, the judge of record must make these findings at the time of hearing in order to be able to grant the guardianship.
Note: This answer addresses full minor guardianships, which are involuntary in nature. Limited minor guardianships are voluntary, i.e., they can be filed only by the custodial parent(s), and a placement plan must be submitted and signed by the custodial parent(s) and the limited guardian and approved by the judge.
The three alternative bases on which a full minor guardianship may be appointed are enunciated in MCL 700.5204(2). One of these criteria, along with proper jurisdiction and venue, must appear to have been satisfied for the court to accept the petition for filing. The actual determination whether the conditions for the appointment of the guardian have been met is made by the judge at the hearing, i.e., do they still exist at that moment, or have circumstances changed since the petition was filed? If not, the minor guardianship cannot be granted.
The following portions of ICLE’s Michigan Guardianship and Conservatorship Handbook (Phillip E. Harter and Thomas V. Trainer eds) are relevant. Chapter 5, Establishing Guardianships of Minors, §5.16 (Hearings and Orders), provides in pertinent part:
When a case is called, the parties present are generally all sworn. Most courts require both the petitioner and the proposed guardian to be present. The petitioner is asked if the statements in the petition are true. In the case of a full guardianship, the court generally inquires about the circumstance that led to the petition being filed.…
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At the hearing, the court satisfies itself that a qualified person seeks the appointment; that venue is proper, that is, that the petition is brought in the county where the minor resides or is present, MCL 700.5211; that the required notices have been given; that the statutory requirements of MCL 700.5204 have been met; and that the appointment will serve the welfare of the minor, MCL 700.5212. If the court finds the proof sufficient, the judge signs the order appointing the guardian ….
(Emphasis added.)
Therefore, unless the appointment criteria were satisfied at the time of hearing, the minor guardianship cannot be granted.