GAP Act: Guardianship of a minor, Part I
Republished with permission of Chancellor Lawrence Primeaux.
Continuing with our look at the GAP Act. Section numbers correspond to SB 2828.
Basis (201):
A person becomes guardian of a minor only by court appointment.
A minor without a guardian may have one appointed if the court finds it to be in the child’s best interest and: (1) the parents consent after being informed of the nature and consequences of guardianship; or (2) all parental rights have been terminated; or (3) there is clear and convincing evidence that no parent is willing to exercise the powers to be granted to the guardian.
Petition (202):
Must include UCCJEA information.
Must also include: (1) name and address of an attorney for the parents; (2) the reason why G is sought and why it would be in the child’s best interest; (3) name and address of the proposed guardian and why that person should be selected; and (4) a general statement of the property of the minor and an estimate of its value.
Notice of hearing (203):
Court sets date, time, and place for hearing.
Notice of hearing served not less than seven days before hearing on each of the following who is not a petitioner: (1) the minor if age 14 or older at the time of the hearing; (2) each parent, or if none or not to be found after reasonable diligence, the nearest adult kin found with reasonable diligence; (3) any adult with whom the minor resides; (4) each individual who had “primary care or custody” of the minor for at least 60 days during the 6 months preceding filing of the petition; and (5) any other person directed to be served by the court.
Under the style and before the body of the petition, the following language must appear in “bold or highlighted type”:
The relief sought herein may affect your legal rights. You have a right to notice of any hearing on this petition, to attend any such hearing, and to be represented by an attorney.
If it is not possible to serve process on the minor per MRCP 4, the court may appoint a GAL to receive notice.
Appointed attorney (204):
The court may appoint an attorney for the minor if: (1) requested to do so by a minor 14 years or older; or (2) recommended by a GAL; or (3) The court determines that the minor needs representation.
Rights at hearing (205):
The court shall require the minor to attend the hearing.
The minor shall be allowed to participate unless the court determines by clear and convincing evidence that: (1) the minor consistently refuses after being advised of the right to attend; or (2) a minor 14 years or older refuses to attend after being informed of the potential consequences of failing to do so; or (3) there is no practicable way for the minor to attend; or (4) the minor lacks ability or maturity to participate meaningfully; or (5) attendance would be harmful to the minor.
Order (206):
The court may appoint, dismiss, or take any other action consistent with law.
In appointing a guardian, the following apply: (1) the court will act consistent with a will “or other record” unless contrary to the best interest of the child; (2) If different parents nominate different guardians, then the court will appoint the one in the best interest of the child, unless none is in the best interest; (3) if no guardian is appointed under the above, then the person nominated by a child over age 14, unless not in the child’s best interest; and (4) if the child’s nominee is not in the child’s best interest, then a person whose appointment is in the child’s best interest.
The court may limit or expand the powers of the guardian “In the interest of maintaining or encouraging involvement by a minor’s parent in the minor’s life, developing self-reliance of the minor, or for other good cause.” The court may do so at the time of appointment or later.
The order shall state the rights retained by any parent, including contact or visitation, or decision-making relating to health care, education, or other matter, or access to records.
The order shall also state that each parent is entitled to notice that: (1) the minor’s residence location has changed; (2) the court has modified or limited the powers of the guardian; or (3) the court has removed the guardian.
Emergency guardian (207):
On a petition filed by any person “interested in a minor’s welfare,” or on a Section 202 petition, the court may appoint an emergency guardian if the court finds: (1) appointment is likely to prevent substantial harm to the minor’s health, safety, or welfare; and (2) no other person appears to have authority and willingness to act.
Duration not to exceed 60 days, and may be extended once for not more than 60 days if the court finds that the conditions continue.
The guardian may exercise only the powers specified in the order appointing.
The court may appoint an emergency guardian with notice or without notice.
With notice. “Reasonable notice” of the date, time, and place of the hearing” must be given to: (1) the minor if 14 or older; (2) any attorney appointed under Section 204; (3) each parent; (4) any person other than a parent having care or custody of the child; and (5) any other person the court determines.
Without notice. Only if the court determines from affidavit or testimony that the minor’s health, safety, or welfare will be substantially harmed before a hearing could be held. If an emergency guardian is appointed without notice, then notice of the appointment must be given within 48 hours to all of the persons who would have been entitled to notice if notice were given. The court must give a hearing to any person who objects to the appointment or its continuation within 5 days of the objection or other contest. AND not later than 5 days after the appointment the court must hold a hearing “on the appropriateness of the appointment.”
Appointment of an emergency guardian is not a determination that basis exists for appointment of a guardian under Section 202.
The court may remove an emergency guardian at any time.
The emergency guardian must make any report that the court requires.
This article was republished with the permission of Chancellor Lawrence Primeaux of Meridian and was originally published on The Better Chancery Practice Blog on October 16, 2019.