Rule 5.402 Common Provisions

(A) Petition; Multiple Prayers. A petition for the appointment of a guardian or a conservator or for a protective order may contain multiple prayers for relief.

(B) Petition by Minor. A petition and a nomination for the appointment of a guardian or conservator of a minor may be executed and made by a minor 14 years of age or older.

(C) Responsibility for Giving Notice; Manner of Service. The petitioner is responsible for giving notice of hearing. Regardless of statutory provisions, an interested person may be served by mail, by personal service, or by publication when necessary; however, if the person who is the subject of the petition is 14 years of age or older, notice of the initial hearing must be served on the person personally unless another method of service is specifically permitted in the circumstances.

(D) Letters of Authority. On the filing of the acceptance of appointment or bond required by the order appointing a fiduciary, the court shall issue letters of authority on a form approved by the state court administrator. Any restriction or limitation of the powers of a guardian or conservator must be set forth in the letters of authority.

(E)   Indian Child; Definitions, Jurisdiction, Notice, Transfer, Intervention.

(1)   If an Indian child, as defined by the Michigan Indian Family Preservation Act, is the subject of a guardianship proceeding, the definitions in MCR 3.002 shall control.

(2)   If an Indian child is the subject of a petition to establish guardianship of a minor and an Indian tribe has exclusive jurisdiction as defined in MCR 3.002(6), the matter shall be dismissed.

(3)   If an Indian child is the subject of a petition to establish guardianship of a minor and an Indian tribe does not have exclusive jurisdiction as defined in MCR 3.002(6), the court shall ensure that the petitioner has given notice of the proceedings to the persons prescribed in MCR 5.125(A)(8) and (C)(19) in accordance with MCR 5.109(1).

(a)   If either parent or the Indian custodian or the Indian child’s tribe petitions the court to transfer the proceeding to the tribal court, the court shall transfer the case to the tribal court unless either parent objects to the transfer of the case to tribal court jurisdiction or the court finds good cause not to transfer. When the court makes a good-cause determination under MCL 712B.7, adequacy of the tribe, tribal court, or tribal social services shall not be considered. A court may determine that good cause not to transfer a case to tribal court exists only if the person opposing the transfer shows by clear and convincing evidence that either of the following applies:

(i)   The Indian tribe does not have a tribal court.

(ii)   The requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is unable to mitigate.

(b)   The court shall not dismiss the matter until the transfer has been accepted by the tribal court.

(c)   If the tribal court declines transfer, the Michigan Indian Family Preservation Act applies, as do the provisions of these rules that pertain to an Indian child (see MCL 712B.3 and MCL 712B.5).

(d)   A petition to transfer may be made at any time in accordance with MCL 712B.7(3).

(4)   The Indian custodian of the child, the Indian child’s tribe, and the Indian child have a right to intervene at any point in the proceeding pursuant to MCL 712B.7(6).

(5)   If the court discovers a child may be an Indian child after a guardianship is ordered, the court shall do all of the following:

(a)   schedule a hearing to be conducted in accordance with MCR 5.404(C) and MCR 5.404(F).

(b)   enter an order for an investigation in accordance with MCR 5.404(A)(2). The order shall be on a form approved by the State Court Administrative Office and shall require the guardian to cooperate in the investigation. The court shall mail a copy of the order to the persons prescribed in MCR 5.125(A)(8), (C)(19), and (C)(25) by first-class mail.

(c) provide notice of the guardianship and the hearing scheduled in subrule (5)(a) and the potential applicability of the Indian Child Welfare Act and the Michigan Indian Family Preservation Act on a form approved by the State Court Administrative Office to the persons prescribed in MCR 5.125(A)(8), (C)(19), and (C)(25) in accordance with MCR 5.109(1). A copy of the notice shall be mailed to the guardian by first-class mail.