Our law firm has been representing clients in petitions for minor guardianships for the past quarter century. Over the last several years, we have noted an upswing of cases where grandparents petition for guardianships over their grandchildren.
Guardianships have their own separate chapter in Michigan’s probate code, known as the Estates and Protected Individuals Code or, EPIC. Within the guardianship chapter, minor guardianships have specialized provisions.
Whenever dealing with minor guardianships, the question looming in the background is: what about the parents of the child? Whenever a custody dispute arises between a parent of the child and a third party -such as a grandparent- the law in Michigan cloaks the parent with a presumption that custody with the parent is in the best interests of the minor child. This presumption, however, is rebuttable.
Probate courts do not just allow third persons, even extended family, to take control over minor children via a minor guardianship. A petition must state -and be able to prove at a hearing in the probate court- certain statutory basis for the minor guardianship.
The applicable provisions within EPIC that control a minor guardianship require a petitioner to select from one of the following three statutory grounds:
Our clients are often the maternal or paternal grandparents of the minor child for whom guardianship is sought.
When the grandparents of minor children make their way to our law office, it is usually because their own child has abdicated all of their parental responsibilities to their parents; the grandparents of the minor children.
This often occurs within a broken home. Usually, one or both parents are in the throes of addiction or are involved in the criminal justice system. In most of these cases, Children’s Protective Services [CPS] has been involved with the family, sometimes for years.
In the last two cases we handled, the mothers of the children died from drug-related reasons. In one case, Mother’s boyfriend at the time of her overdose, immediately filed for guardianship of the decedent’s 7-year-old son. [The boyfriend’s petition was denied and our petition for guardianship on behalf of the biological grandmother was granted.] In the other case, the Mother was murdered by her drug dealer, and the children’s father was incarcerated.
One feature of a grandparent guardianship, once properly established, is that a parent can petition to terminate or modify the grandparent’s guardianship. As mentioned, the law contains a rebuttable presumption that the child’s best interests are served by awarding custody to a parent over a third party, even when that third party is a grandparent that has been properly taking care of the child.
A complication in such cases is that the parent should first obtain some form of custody in the family court prior to proceeding in the probate court to terminate or modify the grandparent guardianship. In such proceedings, while the parent has the advantage a best interest presumption, that statutory presumption is rebuttable. Therefore, a parent will need to earn the trust of the court prior to terminating the guardianship.
A typical trajectory in these cases is that a reemerging parent will reach out to the guardian grandparents to discuss parenting contacts. The parent usually needs to attend parenting classes along with substance abuse counseling if appropriate.
When the reemerging parent has obtained joint legal custody, there is a green light for that parent to petition the probate court to modify the guardianship for more parenting contacts. Progression into an unsupervised parenting schedule that will eventually include weekend parenting time is typical.
For many reemerging parents, however, it is a long and difficult process. We warn our clients that if a reemerging biological parent is very dedicated to a meaningful custodial reunion with their children, family and probate courts support those efforts and often reward the parent in the end.
Such courts have seen many false starts and unclean parental motives. The effort on behalf of the reemerging parent must be genuine. They are provided the proverbial “benefit of the doubt” in the form of the statutory presumption.
Both probate and family courts will rely on verification when it comes to parenting basics such as abstinence, lodging, employment, and appropriate significant others.
We counsel our grandparent guardians during this often heart-wrenching process to encourage, trust, but verify. Like the family and probate courts, our lawyers have also experienced many false starts with otherwise well-meaning parents.
Over the past quarter century, we have also learned that some folks are simply not cut out to be parents, despite the statutory presumption designed to help with their possible parental rehabilitation. In these cases, the grandparents need to have a solid parenting plan and ultimately, an estate plan designed to take care of their grandchildren when they die or are no longer capable of doing so.
Even in the best reunification cases, the process often takes years. Relapses and set backs can add months to the ultimate reunification.
Grandparents need to prepare for the physical and psychological aspects of aging while caring for young children. There are also financial challenges to such guardianships. Legal fees are but one aspect of the process. Grandparent guardians need to look into any possible benefits that are due the children as a result of their parent’s death. Grandparent guardians can become the representative payee in charge of the benefit; this is a useful form of financial assistance.
We see cases where a biological parent makes a feeble attempt to reemerge into their child’s life, only to revert to old habits or to shirk the relentless responsibility of being a parent, and fade away, sometimes forever. These cases are sad on two fronts.
First, the children’s hopes of being reunited with their parent are again dashed. Second, the grandparents need to brace for the long term. They need to embrace the responsibilities of properly educating and preparing their grandchildren for the future.
We Can Help.
If you or a family member needs help in either the family or probate court due to uncertain custody circumstances, contact our office to seek guidance. We have decades of experience counseling families in the difficult situations described above.
grandparent guardianship | minor guardianship | probate court | family court | Estates and Protected Individuals Act | EPIC
