Appeals Court: Probate Judges Cannot Order, Enforce Sibling Visitation

The probate court in this minor guardianship proceeding did not have the legal authority to order and enforce sibling visitation, Michigan Court of Appeals has ruled, reversing the probate court’s orders to that effect.

The respondents in In re Guardianship of DRB (Docket No. 375014), Michael J. Price (Michael) and Teresa M. Price (Teresa), were the adoptive parents of siblings DRB and AB. Due to a breakdown in their relationship with DRB, the child was placed in the care of the petitioner, Darlene Dalessandro, who was his great aunt and who was ultimately named his guardian.

On March 7, 2025, the Clinton County Probate Court entered an order (2025 Order) requiring the respondents to “permit and facilitate” sibling visitation between DRB and AB. The 2025 Order enforced a prior November 28, 2023 order (2023 Order) that had appointed the petitioner as DRB’s guardian under MCL 700.5204(2)(b). The 2023 Order had also instructed the parties to “permit and facilitate” sibling visitation between DRB and AB.

The respondents appealed the 2025 Order, claiming the probate court did not have the authority to enter the sibling visitation provision in the initial 2023 Order and, as a result, it erroneously granted the petitioner’s motion to enforce it.

The Court of Appeals agreed.

“Because the probate court lacked legal authority to order and enforce sibling visitation, we vacate the 2023 Order and reverse the 2025 Order,” the Court of Appeals said, relying on In re ADW, ___ Mich App ___ (2024) (Docket No. 368361). “ADW makes clear that a probate court in a minor-guardianship proceeding does not have legal authority to order sibling visitation.” (See, “Court of Appeals Holds Trial Court Properly Exercised Jurisdiction” on the Speaker Law Blog.)

The Court of Appeals also rejected the petitioner’s argument that the appellate court did not have jurisdiction over the matter. According to the Court of Appeals, the probate court’s order “affected with finality” the respondents’ interests and was appealable under MCR 5.801(A)(5).

Judge Kirsten Frank Kelly, Judge Philip P. Mariani and Judge Matthew S. Ackerman were on the Court of Appeals panel that issued the unpublished opinion.

Additional Facts

DRB and AB were siblings who grew up in several foster care placements. The respondents adopted the children in 2019. However, their relationship with DMB “broke down” and he was eventually placed in the care of the petitioner, his great aunt.

In 2023, the petitioner filed a petition with the Clinton County Probate Court to be named DRB’s guardian pursuant to the Estates and Protected Individuals Code (EPIC), MCL 700.1101, et seq. She also asked the probate court to order the respondents to let DRB have contact with AB.

In November 2023, the probate court appointed the petitioner as DRB’s guardian and ordered sibling visitation. In doing so, the probate court said: “[The respondents] and [the petitioner] shall permit and facilitate sibling visitation with [AB] twice a month for 2 hours at a time without adults at a location identified alternatively by the siblings at a date and time selected by the siblings.” Although the respondents objected to the sibling visitation provision, they did not appeal.

During the months that followed, “[o]nly a few visits took place” and, in January 2025, the petitioner filed a motion to enforce the sibling visitation provision in the 2023 Order. The petitioner claimed the respondents “continued to resist her efforts to arrange sibling visits.” The respondents, however, asserted “that AB was not under the probate court’s jurisdiction” and, as a result, the sibling visitation provision of the 2023 Order “was void.” The respondents also argued that enforcing the 2023 Order “would infringe on their due-process rights with respect to their control, custody, and care of AB.”

The probate court ultimately granted the petitioner’s motion to enforce the 2023 Order, “noting respondents’ failure to originally appeal it.” The probate court then entered the 2025 Order, which mandated that “sibling visitation shall take place consistent with the provisions of” the 2023 Order.

The respondents appealed.

Appealable Order

In its opinion, the Court of Appeals first addressed the petitioner’s argument that the appeals court did not have jurisdiction because the 2025 Order was not a “final order” subject to appeal.

“Whether a probate court order is appealable to this Court is controlled by MCR 5.801(A),” the Court of Appeals said, citing In re Guardianship of Bazakis, 342 Mich App 144 (2022). “MCR 5.801(A)(3) permits an appeal by right from ‘a final order affecting the rights and interests of an adult or a minor in a guardianship proceeding under the Estates and Protected Individuals Code[.]’”

Further, MCR 5.801(A)(5) “permits an appeal by right from ‘an order entered in a probate proceeding, other than a civil action commenced in a probate court, that otherwise affects with finality the rights or interests of a party or an interested person in the subject matter,’” the Court of Appeals observed.

“We conclude that this Court has jurisdiction to review whether the probate court erred by ordering enforcement of the 2023 Order,” the Court of Appeals wrote. “The 2025 Order ‘resolve[d] the issues relative to the Petitioner/Guardian’s Verified Motion to Enforce Court Order,’ and left all prior probate court orders in effect. Therefore, the 2025 Order affected with finality respondents’ interests in the matter, and was appealable under MCR 5.801(A)(5).”

The Court of Appeals also pointed out that, although the 2025 Order stated it was “not a final Order,” this fact was “not dispositive.” In so ruling, the Court of Appeals referenced Faircloth v Family Independence Agency, 232 Mich App 391 (1998), which “explain[ed] that mere certification of an order as final does not determine whether it is final for the purposes of appellate jurisdiction.”

‘Limits’ On Probate Court Authority

Next, the Court of Appeals addressed the respondents’ contention that the probate court erroneously enforced the 2023 Order regarding sibling visitation.

“Respondents argue that the probate court did not have authority to enter the sibling visitation provision in the 2023 Order, and it erred by granting petitioner’s motion to enforce the 2023 Order,” the Court of Appeals said. “We agree that the probate court abused its discretion because it lacked authority to order – and consequently, enforce – sibling visitation.”

Relying on ADW, the Court of Appeals explained that it has previously “defined the narrow limits” of a probate court’s “authority to order visitation between a ward and his or her relatives.” ADW “makes clear that a probate court in a minor-guardianship proceeding does not have legal authority to order sibling visitation. As such, the probate court abused its discretion when it entered an order enforcing sibling visitation between DRB and AB.”

Moreover, “[w]e note that respondents interchangeably refer to the probate court as lacking ‘jurisdiction’ and lacking ‘authority,’” the Court of Appeals pointed out. “[T]here is a widespread and unfortunate practice among both state and federal courts of using the term ‘jurisdiction’ imprecisely, to refer both to the subject-matter and the personal jurisdiction of the court, and to the court’s general authority to take action. … In ADW, it is clear that this Court was concerned about the probate court’s legal authority with regard to sibling visitation, not its subject-matter or personal jurisdiction, and we conclude that this is the proper framework for assessing the issue in this case.”

Accordingly, the Court of Appeals reversed the probate court’s orders and remanded the matter for further proceedings. “Having concluded that the probate court lacked legal authority to order and enforce sibling visitation, we need not address respondents’ due-process arguments.”