March 21, 2006


ADM File No. 2005-12

Proposed Amendment 
of Rules 5.104, 5.402,
and 5.403 to the
Michigan Court Rules
                 

     On order of the Court, this is to advise that the Court is considering amendments of
Rules 5.104, 5.402, and 5.403 of the Michigan Court Rules.  Before determining whether
the proposal should be adopted, changed before adoption, or rejected, this notice is given
to afford interested persons the opportunity to comment on the form or the merits of the
proposal, or to suggest alternatives.  The Court welcomes the views of all.  This matter also
will be considered at a public hearing.  The notices and agendas for public hearings are
posted at www.courts.michigan.gov/supremecourt.

     Publication of this proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in its present form.

           

                                

Rule 5.104  Proof of Service; Waiver and Consent; Unopposed Petition

     (A)  Proof of Service.
     
          (1)  Whenever service is required by statute or court rule, a proof of service
          must be filed promptly.  The proof of service must be filed before
          a hearing on a matter [and at the latest before a hearing ]to
          which the paper relates or at the time the paper is required to be filed
          with the court if the paper does not relate to a hearing. Whenever
          relief is granted ex parte, a proof of service for the petition and order
          must be filed as soon as possible after the court hears the request for
          relief and at the latest 10 days after the date of service or before a
          subsequent hearing on the matter, whichever period is shorter. The
          proof of service must include a description of the papers served, the
          date of service, the manner and method of service, and the person or
          persons served.
          
          (2)-(4) [Unchanged.]
          
     (B)-(C) [Unchanged.]
     
Rule 5.402  Common Provisions

     (A)-(B) [Unchanged.]
   
     (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 parent of a minor can be
     located, or if a 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 parent or
     person personally unless another method of service is specifically
     permitted in the circumstances.
     
     (D)  [Unchanged.]

Rule 5.403  Proceedings on Temporary Guardianship

     (A)  [Unchanged.]
     
     (B)  Notice of Hearing, Minor.  For good cause, the court may shorten the period
     for notice of hearing. [or may dispense with notice of a hearing
     for the appointment of a temporary guardian of a minor, except that the minor
     shall always receive notice if the minor is 14 years of age or older. ]In
     an emergency, or at the request of law enforcement, the state agency charged
     with the protection of minors, or that agency's designated agents, the court
     may proceed without notice of a hearing for the appointment of a temporary
     guardian of a minor, except that the minor shall always receive notice if the
     minor is 14 years of age or older.  If the notice period is shortened or
     eliminated, the court shall state on the record and indicate on the order what
     circumstances justify shortening or eliminating notice.  Unless the parents of
     the minor appear at the hearing, any order granting a temporary ex parte
     guardianship after a notice of hearing was shortened or eliminated shall state
     clearly and prominently (1) that the order is a temporary, ex parte order, and
     (2) the date and place for a hearing on the matter to be held within 56 days
     after the order was issued.  The petitioner shall serve the temporary, ex parte
     order, notice of hearing, and initial petition for guardianship on each
     parent by personal service pursuant to MCR 5.105(B)(1).  If the parents
     cannot be located, service may be by first-class mail to each parent's last
     known address, or by publication as provided in MCR 5.105(A)(3) and 5.106,
     or by such means as directed by the court under MCR 5.105(A)(4).
     
     (C)-(D) [Unchanged.]
     
     Staff Comment:  The proposed amendment of MCR 5.104(A)(1) would
establish a time frame within which the proof of service must be filed when the court issues
an ex parte order.  The proposed amendment of MCR 5.402(C) would add the requirement
of how service is to be made on a parent of a minor who is the subject of a petition when the
whereabouts of the parent are known.  The proposed amendment of MCR 5.403(B) would
add the requirement of a subsequent hearing within 56 days if a temporary guardian is
appointed for a minor by ex parte order and the parents of the minor are not present at the
ex parte hearing.

     The staff comment is not an authoritative construction by the Court.

     A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201. 
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by July 1, 2006, at P.O. Box 30052, Lansing, MI  48909, or 
MSC_clerk@courts.mi.gov.  When filing a comment, please refer to ADM File No.
2005-12.  Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.