Because the facts of every circumstance is different, it is important to consult with an attorney regarding any particular circumstance. However, this summary does help provide some important information on this topic.
A guardian is a person appointed by the Probate Court to have the custody of a minor or of an incapacitated person. A limited guardian is a person whose powers as guardian are limited by the court to certain specified functions.
Delegation By Parent
a. Pursuant to RSMo 475.024, the parent of a minor child may delegate their powers regarding care and custody to another person for a period not to exceed one year. This power does not apply to consenting to marriage or adoption of the child.
Letters of Guardianship and Conservatorship
a. Letters of guardianship may be granted for an incapacitated person, and letters of conservatorship may be granted for a person with disabilities under RSMo 475.020.
b. Letters of conservatorship may be granted for a minor child’s entire estate when there is no living parent or the court finds it to be in the minor child’s best interest.
c. Letters of guardianship may be granted when the minor child has no living parent, the parents are unwilling, unable or are adjudicated unfit to assume the duties of guardianship, or the parents’ rights have been terminated.
Who Can Be Guardian Under RSMo 475.045?
a. The parent(s) of the minor child;
b. A person selected by the minor if the minor is over the age of fourteen and has no qualified parent living (unless the court finds appointment contrary to the best interests of the minor);
c. If both parents are deceased, any person appointed by the will of the last surviving parent, who has not been adjudged unfit or incompetent for the duties of guardian or conservator;
d. The most suitable person, as selected by the court, who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement.
Petition for Guardianship Pursuant to RSMo 475.060
a. Any person may file a petition for the appointment of himself or some other qualified person as guardian of a minor or guardian of an incapacitated person. Such petition shall state the following:
i. The name, age, domicile, actual place of residence and post office address of the minor or incapacitated person if known and if any of these facts is unknown, the efforts made to ascertain that fact;
ii. The estimated value of his real and personal property;
iii. If the minor or incapacitated person has no domicile or place of residence in this state, the county in which the property or major part thereof of the minor or incapacitated person is located;
iv. The name and address of the parents of the minor or incapacitated person and whether they are living or dead;
v. The name and address of the spouse, and the names, ages and addresses of all living children of the minor or incapacitated person;
vi. The name and address of the person having custody of the person of the minor or incapacitated person;
vii. The name and address of any guardian of the person or conservator of the estate of the minor or incapacitated person appointed in this or any other state;
viii. If appointment is sought for a natural person, other than the public administrator, the names and addresses of wards and disabled persons for whom such person is already guardian or conservator;
ix. In the case of an incapacitated person, the fact that the person for whom guardianship is sought is unable by reason of some specified physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur;
x. The reasons why the appointment of a guardian is sought;
b. A petition for the appointment of a guardian of a minor may be filed for the sole and specific purpose of school registration or medical insurance coverage.
a. Under RSMo 475.070, notice of the Petition must be served on the following individuals, unless they have signed the petition or have waived notice:
i. The minor, if over fourteen years of age;
1. Notice must be by personal service if possible;
ii. The parents of the minor;
1. Note – If the Petition is filed for the sole purpose of school registration or medical insurance coverage, an affidavit shall be filed by Petitioner stating that, after due and diligent effort to the best of his or her ability, the whereabouts or identity of either or both parents of the minor remains unknown. The court may proceed with the appointment without notice to the parents in this situation.
iii. The spouse of the minor;
iv. If directed by the court:
1. Any person who has been appointed guardian or any person having care and custody of the minor;
2. Any department, bureau or agency of the United States or of this state or any political subdivision thereof, which makes or awards compensation, pension, insurance or other allowance for the benefit of the ward’s estate;
3. Any department, bureau or agency of this state or any political subdivision thereof or any charitable organization of this state, which may be charged with the supervision, control or custody of the minor.
Guardianship and Conservatorship Orders
a. Guardian – RSMo 475.079(1)
i. If it appears to the court that a guardian should be appointed for a minor who is not incapacitated or if it is found by the jury or the court upon proof by clear and convincing evidence that the person for whom a guardian is sought is incapacitated as defined in this law, the court may appoint a guardian of the person. The appointment of guardians of minors shall be made in accordance with section 475.045, except that if a person entitled to appointment as a guardian or entitled to select a guardian fails to appear after notice or to apply for such appointment or make selection in accordance with the order of the court the court may appoint any suitable person as guardian.
b. Conservator – RSMo 475.079(2)
i. If it is found that the person for whom a conservator of the estate is sought is a minor or is disabled as defined in section 475.010 by a disability other than or in addition to minority, the court may appoint a conservator of the estate, who may be the same person appointed guardian of the person.
Termination of Guardianship or Conservatorship Under RSMo 475.083
a. Termination automatically occurs:
i. When a minor becomes eighteen years of age;
ii. Upon an adjudication that an incapacitated or disabled person has been restored to his capacity or ability;
iii. Upon revocation of the letters of the guardian or conservator;
iv. Upon the acceptance by the court of the resignation of the guardian or conservator;
v. Upon the death of the ward or protectee;
vi. Upon the expiration of an order appointing a guardian or conservator ad litem unless the court orders extension of the appointment;
vii. Upon an order of court terminating the guardianship or conservatorship.
b. Termination occurs by court order:
i. If the conservatorship estate is exhausted;
ii. If the conservatorship is no longer necessary for any other reason;
iii. If the court finds that a parent is fit, suitable and able to assume the duties of guardianship and it is in the best interest of the minor that the guardianship be terminated.
Powers – RSMo 475.120
a. The guardian of the person of a minor shall be entitled to the custody and control of the ward and shall provide for the ward’s education, support and maintenance.
b. A guardian or limited guardian of an incapacitated person shall act in the best interest of the ward. A limited guardian of an incapacitated person shall have the powers and duties enumerated by the court in the adjudication order or any later modifying order.
c. The general powers and duties of a guardian of an incapacitated person shall be to take charge of the person of the ward and to provide for the ward’s care, treatment, habilitation, education, support and maintenance; and the powers and duties shall include, but not be limited to, the following:
i. Assure that the ward resides in the best and least restrictive setting reasonably available;
ii. Assure that the ward receives medical care and other services that are needed;
iii. Promote and protect the care, comfort, safety, health, and welfare of the ward;
iv. Provide required consents on behalf of the ward;
v. To exercise all powers and discharge all duties necessary or proper to implement the provisions of this section.
d. A guardian of an adult or minor ward is not obligated by virtue of such guardian’s appointment to use the guardian’s own financial resources for the support of the ward. If the ward’s estate and available public benefits are inadequate for the proper care of the ward, the guardian or conservator may apply to the county commission pursuant to section 475.370.
e. No guardian of the person shall have authority to seek admission of the guardian’s ward to a mental health or mental retardation facility for more than thirty days for any purpose without court order except as otherwise provided by law.
Hot Button Issue: When should letters of guardianship issue of a minor?
Missouri case law dictates that “letters of guardianship for a minor should not issue unless there is no parent available, willing, or able to fulfill the parental role in caring for a child.” Reece v. Reece, 890 S.W.2d 706 (Mo. App. 1995); Flynn v. Flynn, 34 S.W.3d 209 (Mo. App. 2000). The guardianship statutes create a presumption that a minor child’s best interest is served with custody given to the natural parent. Id. In determining the fitness of a natural parent, the court can inquire into factors such as detriment to child’s well-being, stability of family life, amount of care the custodian will be able to provide, the home environment, and the mental health or illness of the proposed custodian. Id. Further, an allegation of unfitness as parent, but not as fitness to serve as guardian, is insufficient to prove natural parent is unwilling, unable and unfit to serve as guardian. Black v. Black, 824 S.W.2d 514 (Mo. App. 1992).
In Morris v. McGregor, the court reversed the trial court’s decision taking custody rights away from natural mother and natural father. Morris v. McGregor, 269 S.W.2d 171 (Mo. App. 1954). While it was unclear why the trial court took custody away from the natural parents, the appellate court speculated that it was because of the natural parents’ financial status. Id. The court reversed and held that “It is no justification to say that [natural parents] were not entitled to their child[ren] because they are poor people. Id at 175.
In Baker v. Baker, the court reinforced Morris and held that “financial status should never be the determinative basis for removing custody from the natural parent.” Baker v. Baker, 923 S.W.2d 346, 348 (Mo. App. 1996) (emphasis added). The affluence of one person or the limited means of another is not the primary factor in considering an award of custody. R v. E, 364 S.W.2d. 821, 828 (Mo. App.1963).
Missouri courts have held that a parent’s right to custody of his or her minor child is determined by existing conditions and past conditions are material only to the extent that they clarify and shed light on those existing conditions. In Interest of Feemster, 751 S.W.2d 772, 773 (Mo. App. S.D. 1988).
In Ex Parte Ray, the court sustained a writ of habeas corpus and held that care and custody of the minor children were to be placed with natural father. Ex Parte Ray, 573 S.W.2d 152 (Mo. App. 1978). Evidence was adduced that natural father had smoked marijuana in the past and had a varied, checkered and unstable marital history. Id. at 155. The court held that father’s marijuana use and his unstable marital past does not constitute a present, existing condition warranting deprivation of custody. Id. at 155-156. (Downing v. Downing, 537 S.W.2d 840, 844 (Mo. App. 1976). Repeating well-established Missouri case law, the court stated, “[Natural Father] is clothed with a presumption of law that the best interests of his children are served in his custody as surviving parent, absent a showing of some special and extraordinary reason why he should not have custody.” Id. The court further stated, “On the whole case, no presently existing circumstance has been shown in the evidence to support depriving father of custody of his children.” Id.
In Matter of C.W.B., the court upheld the trial court and affirmed the custody award of the minor child to the grandparents over the legal father. Matter of C.W.B., 578 S.W.2d 610 (Mo. App. 1979). Evidence was adduced that the legal father had failed to support or visit the child for longer than a year, had consumed excessive amounts of intoxicants in the past, and had frequently made overnight visits with various women to whom he is not married. Id. at 613. The court held that the aforementioned factors coupled with an unstable home environment were sufficient to overcome the presumption that custody should be vested with the legal father. Id. The court further held, “the determination of the issue of the custody of the minor child must be based on existing conditions; however, past conditions, conduct and attitudes which color, indicate, clarify or cast light upon conditions as they now exist, constitute the larger concept of the term ‘present’ condition.” Id. at 614. (emphasis added). The court in C.W.B. clarified this seemingly enigmatic statement by stating later in the opinion, “Taken as a whole, the past activities of the petitioner gives little, or no, hope that his future performance will be responsible and in the child’s best interest.” Id. at 615. (emphasis added).
In M.P.M. v. Williams, the court affirmed the trial court’s decision finding natural father capable, fit and suitable to have custody of his minor children over stepfather. M.P.M. v. Williams, 611 S.W.2d 274 (Mo. App. 1980). The court found relevant the fact that no evidence of misbehavior or misconduct had been established against the father, and that even though father had missed 25% of his visitation time with the children the year before the custody proceeding, the father was presently fit to care for his children. Id. at 276. Thus, part of this case stands for the proposition that past actions regarding visitation with the child are incidental in determining whether the parent is presently fit to care for the child.
Fitness or Best Interest Standard?
In Cotton v. Wise, the trial court awarded letters of guardianship to a non-parent based on the “equitable parent” doctrine. Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998). Although the trial court never found natural father to be unfit, the court found that the children’s growth and development would be detrimentally affected if placed with natural father. Id. The Missouri Supreme Court found that the trial court’s decision was incorrect by rejecting the possibility that a “better” parent simply could be substituted for the natural parent when that substitution seems to be in the best interest of the children.” Id. Thus, they reversed the trial court’s finding and ruled that the award of custody under Section 475.030 RSMo “must be premised upon the finding that the natural parent is unfit, unwilling, or unable to care for his children.” Id.
However, in Estate of Williams, 922 S.W.2d 422 (Mo. App. S.D. 1996), the Court of Appeals relied on a Georgia case, Lewis v. Lewis, 269 S.E.2d 919, 921-22 (1980) in defining fitness as: “[I]n a contest between one or both parents and a third party “unfitness” must be shown by evidence and found to exist by the court, and that it amounts to circumstances which justify the court in acting for the best interests and welfare of the minor.” Ironically, the fitness standard from the Williams case, that seems to contradict Cotton, was rejected and overruled by the Georgia Supreme Court in Carvalho v. Lewis, 247 S.E.2d 471 (Ga. 1981).
To gain more information on similar topics, you might view our pages on Grandparent Visitation for cases in which grandparents are seeking visitation versus guardianship. You might also read about juvenile abuse and neglect for cases in which the state becomes involved to protect children from abuse and neglect.
Keywords: Guardianships, Conservatorships