Legal Memorandum: Exclusive Jurisdiction of Probate Court

Issue: Does the Probate Court have exclusive jurisdiction to consider visitation issues relating to an adult disabled child in California, Illinois, New Hampshire and Minnesota?

In In re Sculley, 890 A.2d 914 (N.H. 2006) the appellate court held that the probate court had exclusive jurisdiction to consider visitation issues relating to the parties’ adult disabled child, but on the same day that the probate court appointed one parent to serve as the daughter’s guardian, it granted the other parent’s motion for visitation and awarded him visitation rights consistent with those in the original decree.  Therefore, the visitation issues were later properly resolved in the probate court. 

However in Minnesota, neither the Constitution nor statute grants exclusive jurisdiction to the probate courts.  Minn. Const. Art. VI, § 11 and Minn. Stat. § 524.5-106 address the jurisdiction of the probate court in guardianship matters.  The Constitutional provision states simply that “[o]riginal jurisdiction . . . for . . .  all guardianship . . . proceedings. . . shall be provided by law,” and the statutory provision states simply that “the [probate] court has jurisdiction over[] guardianship and related proceedings.”  Importantly, neither of the Minnesota provisions explicitly states that the probate court has exclusive jurisdiction in guardianship cases, although statutes in other jurisdictions do make that proclamation.  See generally 2 Children & the Law: Rights & Obligations § 7:3 (2010) (stating that guardianship subject matter jurisdiction is usually delegated, by state constitutional or statutory provision, to the court exercising probate jurisdiction, and that such jurisdiction may be exclusive, original, general, or continuing); 39 C.J.S. Guardian & Ward § 13 (2011) (also stating that constitutional and statutory provisions confer on probate courts the power to appoint guardians, […]