Section 15.6 Generally

• Library: Estate Administration 2014 Supp

A. (§15.6) Generally

Any person may file to be appointed as guardian of the person of the minor, but there is a hierarchy as to who may be appointed. First, the parent or parents of the minor may be appointed—except parents who have had their parental rights terminated, are deceased, or are unable, unwilling, or adjudged unfit. Second, if the minor is over 14 years of age, the person nominated by the minor may be appointed—assuming it is in the best interest of the minor and the person qualifies. Third, any person appointed by the will of the last surviving parent may be appointed—assuming that person has not been judged unfit or incompetent to the duties. Fourth, if none of the above parties are present, the court will appoint someone who is most suitable and who is willing to serve. Section 475.045, RSMo 2000.

A minor who is over 14 years of age has a right to choose who their guardian or conservator will be, unless the person the minor designates is unfit or such an appointment would not be in the best interest of the minor. There is no requirement, as there is under § 452.375, RSMo Supp. 2008, that the court just “consider” the minor’s preference. If the child is under 15 years of age, the child’s preference may be legally relevant; in that situation, the court probably should consider the minor’s preference. In re S.M., 938 S.W.2d 910 (Mo. App. W.D. 1997). See also State ex rel. Pinger v. Reynolds, 97 S.W. 650 (Mo. App. W.D. 1906), in which the court held, as to a minor over 14 years of age, that if the selected person is suitable, the court is obligated to make the appointment.

As for the appointment under the fourth option, see In re D.E.B., 244 S.W.3d 766 (Mo. App. S.D. 2008) (citing In re S.M., 938 S.W.2d at 920). These cases stand for the proposition that there is no preference or presumption for relatives to be appointed unless all other factors are equal. Only then does it become a preference to help tip the scale. See also In re Benson, 124 S.W.3d 79 (Mo. App. S.D. 2004). The most important factors in a child custody determination are a good environment and a stable home.

The petition for guardianship of a minor must include:

the name, age, domicile, actual place of residence, and post office address of the minor, if known, and if the facts are unknown, the efforts made to ascertain those facts;

the estimated value of the minor’s real or personal property;

if the minor has no domicile or place of residence in Missouri, the county in which the property of the minor or major parts of it are located;

the name and address of the parents of the minor and whether they are living or dead;

the name and address of the minor’s spouse and the names, ages,

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