Could parents in Maryland get an orphans' court to appoint a guardian for their child just so the child could attend public school tuition-free in a different county?

Plain-English summary

A judge of the Orphans' Court for Baltimore County asked the Attorney General three questions about that court's power to appoint a guardian of a minor's person: whether orphans' courts and circuit courts shared jurisdiction over guardianship in all cases, when exactly an orphans' court could appoint such a guardian, and whether an orphans' court could appoint a guardian solely so a child could attend public school tuition-free in a county other than where the child's parents lived.

The Attorney General concluded that orphans' courts and circuit courts did not have equally broad jurisdiction over guardianship. The two courts shared jurisdiction only over guardianship cases falling under Subtitle 7 of Title 13 of the Estates and Trusts Article, meaning an orphans' court could appoint a guardian of a minor's person only when neither parent was serving as guardian (because both parents had died or the surviving parent no longer had legal responsibility for the child) and no guardian had already been named by will. Circuit courts, by contrast, had much broader authority over children under their general equity and parens patriae power, the Family Law Article, and the juvenile court statutes covering children in need of assistance or supervision, none of which orphans' courts shared. On the specific tuition question, the opinion concluded that an orphans' court had no jurisdiction to appoint a guardian solely to make a child eligible for free public school in a county where the child's own parents did not live, because that purpose fell outside the narrow guardianship jurisdiction Subtitle 7 actually granted.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland orphans' court appoint a guardian for a child just so the child could attend a different county's public schools for free?
No. The opinion concluded that appointing a guardian for that purpose alone fell outside the orphans' court's jurisdiction, because the guardianship statute only allowed the court to act when neither parent was serving as guardian, not to manufacture eligibility for free public schooling in a county where the child's own parents did not reside.

What was the difference between what orphans' courts and circuit courts could do about guardianship of a minor in Maryland at the time of this opinion?
The opinion explained that orphans' courts and circuit courts shared jurisdiction only over guardianship cases under Subtitle 7 of Title 13 of the Estates and Trusts Article. Circuit courts had much broader authority, including general equity and parens patriae power, jurisdiction under the Family Law Article, and authority over children found to be in need of assistance or supervision under the juvenile court statutes, none of which the orphans' courts possessed.

When did an orphans' court actually have jurisdiction to appoint a guardian of a minor's person?
According to the opinion, an orphans' court could appoint a guardian of a minor's person only when neither parent was serving as guardian, either because both parents had died or because the surviving parent no longer had legal responsibility for the child, and no guardian had already been appointed by will.

Could an orphans' court terminate a parent's legal rights over their child?
No. The opinion noted that only a circuit court could enter a decree terminating parental rights and obligations, and that such a decree required a petition from a child placement agency or an attorney for the child under the Family Law Article.

Background and statutory framework

The opinion traced the orphans' courts' jurisdiction over guardianship of a minor's person to Subtitle 7 of Title 13 of the Estates and Trusts Article, which it described as the only express statutory grant of that jurisdiction to the orphans' courts. Under ET §13-701, a surviving parent could appoint a guardian for a minor by will without court involvement. Under ET §13-702(a), an orphans' court could appoint a guardian of the person of an unmarried minor only "if neither parent is serving as guardian of the person and no testamentary appointment has been made," on petition by an interested person after notice and hearing, and had to appoint a minor's own choice of guardian once the minor turned 14 unless doing so would not serve the minor's best interests. The opinion traced this limitation back through the predecessor statutes, former Article 93 and Article 72A, and the 1969 enactment of former Article 93A, all of which similarly confined the orphans' courts' guardianship authority to situations where no parent remained legally responsible for the child.

By contrast, circuit courts drew authority over guardianship from several additional sources orphans' courts did not share: general equity jurisdiction over custody and guardianship (including the well-established parens patriae power described in Wentzel v. Montgomery General Hospital as the State's sovereign guardianship power over minors), the Family Law Article's provisions on natural guardianship and decrees terminating parental rights, and the Courts and Judicial Proceedings Article's juvenile-court authority over children found to be in need of assistance or supervision. Because ET §13-106(b) confirmed that an orphans' court "may not exercise jurisdiction not expressly conferred by law," and because that express grant reached only the narrow circumstance described in ET §13-702(a), the opinion concluded doubts about orphans' court jurisdiction had to be resolved against finding jurisdiction. Applying that framework to the tuition question, the opinion noted Maryland's compulsory-education and free-public-school statutes generally limited free schooling to bona fide residents of a school district, quoting a 1979 State Board of Education opinion that a child must actually live in the district with a parent, guardian, or other person with legal custody, and that a "superficial residence" established solely to attend a district's schools would not qualify. Because seeking a guardian purely to establish school eligibility did not fall within the narrow circumstances of ET §13-702(a), the opinion concluded the orphans' courts lacked jurisdiction to appoint a guardian for that purpose.

Citations and references

Statutes:

• ET §13-106(b), §13-105(a), §13-105(b), §13-101(g), §13-101(n), §13-701, §13-702(a), Estates and Trusts Article guardianship provisions
• Former Article 93, §164; former Article 72A, §§1, 4; Chapter 3 of the Laws of Maryland 1969; former Article 93A, §702(a), predecessor guardianship statutes
• FL §1-201(a)(5), (c), (d), §5-203(a)(1), (a)(2), §5-317(f), Family Law Article provisions on equity jurisdiction and natural guardianship
• Fam. Law. Art. §§5-313 and 5-317, statutory basis for a circuit court decree terminating parental rights
• CJ §3-820(c)(1)(i), (ii), §3-806, Courts and Judicial Proceedings Article juvenile court (CINA/CINS) provisions
• Article VIII, §1 of the Maryland Constitution, the Free Public Schools guarantee
• ED §1-201, §7-101(a), §7-301(a), §4-120.1, Education Article residency and compulsory attendance provisions
• §5-507 of the Family Law Article, licensed child placement agencies

Cases:

• Carroll County v. Edelmann, 320 Md. 150, 169, 577 A.2d 14 (1990), Maryland Court of Appeals
• Kaouris v. Kaouris, 324 Md. 687, 598 A.2d 1193 (1991), Maryland Court of Appeals
• Carrier v. Crestar Bank, 316 Md. 700, 561 A.2d 227 (1989), Maryland Court of Appeals
• Crandall v. Crandall, 218 Md. 598, 147 A.2d 754 (1959), Maryland Court of Appeals
• Talbot Packing Corp. v. Wheatley, 172 Md. 365, 369, 190 A.2d 833, 837 (1937), Maryland Court of Appeals
• In re Adoption/Guardianship No. 87A262, 323 Md. 12, 590 A.2d 165 (1991), Maryland Court of Appeals
• Kicherer v. Kicherer, 285 Md. 114, 400 A.2d 1097 (1979), Maryland Court of Appeals
• Wentzel v. Montgomery General Hospital, 293 Md. 685, 447 A.2d 1244 (1982), cert. denied, 459 U.S. 1147 (1983), Maryland Court of Appeals, certiorari denied by the U.S. Supreme Court
• Martinez v. Bynum, 461 U.S. 321 (1983), U.S. Supreme Court

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 41 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COURTS AND JUDGES

Circuit Courts - Orphans' Courts - Jurisdiction and
Procedure - Limitations on Orphans' Court's
Jurisdiction to Appoint a Guardian of the Person of a
Minor

                         March 20, 1992

The Honorable Grace G. Connolly
Judge of the Orphans' Court
for Baltimore County

   You have requested our opinion on various issues concerning the

jurisdiction of orphans' courts to appoint a guardian of the person of a
minor. Specifically, you have asked:

   1. Do orphans' courts and circuit courts have concurrent

jurisdiction in all cases involving the appointment of a guardian of the
person of a minor?

  2. If the jurisdiction of the orphans' courts and circuit courts is not

co-extensive, in what circumstances do orphans' courts have jurisdiction
to appoint a guardian of the person of a minor?

  3. Do orphans' courts have jurisdiction to appoint the guardian of

the person of a minor for the sole purpose of allowing the minor to attend
public school without paying tuition?

For the reasons set forth below, we conclude as follows:

   1. The jurisdiction of orphans' courts and circuit courts to appoint

a guardian of the person of the minor is not co-extensive. Orphans' courts
and circuit courts exercise concurrent jurisdiction only over the
appointment of a guardian of the person of a minor in cases arising under
Title 13, Subtitle 7 of the Estates and Trusts Article ("ET" Article).

  2. The jurisdiction of orphans' courts to appoint a guardian of the

person of a minor is confined to cases in which neither parent is serving as
guardian and no testamentary appointment of a guardian of the person of
the minor has been made.

  3. Orphans' courts do not have jurisdiction to appoint a guardian

of the person of the minor for the sole purpose of allowing the minor to
attend public school without paying tuition.

                                 I


     Jurisdiction of Orphans' Courts and Circuit Courts

A. Introduction

  A court must have personal and subject matter jurisdiction in order

to exercise its judicial authority:

      [T]he term "jurisdiction" encompasses a number of
      different meanings. As applied to courts, it refers to
      "the power to act with regard to a subject matter
      which is conferred by the sovereign authority which
      organizes the court, and is to be sought for in the
      general nature of its powers, or in the authority
      specially conferred." ... "[I]f by that law which defines
      the authority of a court, a judicial body is given the
      power to render a judgment over that class of cases
      within which a particular one falls, then its acts cannot
      be assailed for want of subject matter jurisdiction."

Carroll County v. Edelmann, 320 Md. 150, 169, 577 A.2d 14 (1990)
(citations omitted, emphasis in original).

B. Orphans' Court

   Orphans' courts are courts of limited, rather than general,

jurisdiction. Kaouris v. Kaouris, 324 Md. 687, 598 A.2d 1193 (1991);
Carrier v. Crestar Bank, 316 Md. 700, 561 A.2d 227 (1989); Crandall v.
Crandall, 218 Md. 598, 147 A.2d 754 (1959). ET §13-106(b) confirms
the settled principle that "[t]he orphans' court, under the pretext of
incidental power or constructive authority, may not exercise jurisdiction
not expressly conferred by law". See also Talbot Packing Corp. v.
Wheatley, 172 Md. 365, 369, 190 A.2d 833, 837 (1937) (before orphans'
courts may exercise jurisdiction, "the facts necessary to clothe them with
jurisdiction must affirmatively appear upon the face of their proceedings").

  The concurrent jurisdiction of orphans' courts and circuit courts over

guardianships is set forth in ET §13-105(a), which provides that "[t]he
orphans' courts and the circuit courts have concurrent jurisdiction over the
guardian of the person of a minor and over protective proceedings for
minors." As we shall explain, this language does not mean that the
jurisdiction of the orphans' courts is equivalent to that of the circuit courts.

   "Guardian" and "protective proceedings" are defined terms for

purposes of ET Title 13: "'Guardian' means a guardian of an estate
appointed by a court under Subtitle 2 of this title to manage the property
of a disabled person or minor or a guardian of a person appointed by a
court under Subtitle 7 of this title, according to the context in which it is
used." ET §13-101(g). "'Protective proceeding' is a proceeding to
protect an estate in accordance with Subtitle 2 of this title or a proceeding
to appoint a guardian of the person brought pursuant to Subtitle 7 of this
title." ET §13-101(n).

  Subtitle 7 of ET Title 13 sets forth the provisions governing the

appointment of a guardian of the person of a minor. This subtitle contains
the only jurisdictional grant expressly conferred on the orphans' courts
with respect to appointment of a guardian of the person for a minor.

  ET §13-701, applicable when one parent is deceased, authorizes the

surviving parent to appoint the guardian of a minor:

            Unless prohibited by agreement or court order, the
        surviving parent of a minor may appoint by will one or
        more guardians and successor guardians of the person
        of an unmarried minor. The guardian need not be
        approved by or qualified in any court.

ET §13-702(a) sets out the circumstances under which the orphans' court
is to appoint the guardian of a minor:

            If neither parent is serving as guardian of the
        person and no testamentary appointment has been
        made, on petition by any person interested in the
        welfare of the minor, and after notice and hearing, the
        court may appoint a guardian of the person of an
        unmarried minor. If the minor has attained his 14th
        birthday, and if the person otherwise is qualified, the
        court shall appoint a person designated by the minor,
        unless the decision is not in the best interests of the
        minor. This section may not be construed to require
        court appointment of a guardian of the person of a
        minor if there is no good reason, such as a dispute, for
        a court appointment.

   ET §13-702 thus addresses only the situation where "neither parent

is serving as guardian" and no guardian was appointed by will as allowed
by ET §13-701. In this instance, orphans' courts have jurisdiction to
appoint a guardian of the person of a minor. Although the phrase "neither
parent is serving as guardian" in ET §13-702(a) is not defined, that
provision reasonably must be interpreted to refer to the instance in which
there is no surviving parent who is legally responsible for the minor, either
because both parents are deceased or the surviving parent is no longer
legally responsible for the minor.

   The history of the provisions addressing the jurisdiction of the

orphans' courts relating to guardianship of a minor confirms that the
jurisdiction is limited to this circumstance. Prior to enactment of former
Article 93A in 1969, the testamentary law, including provisions dealing
with appointment of guardians, was set forth in former Article 93. Under
§164 of former Article 93, the orphans' court could appoint a guardian
only when a minor was entitled to receive property by devise or bequest
under a will or pursuant to the laws of intestacy and no guardian had been
appointed by will. Former Article 72A, §1 provided that the father and
mother were the joint natural guardians of their minor child and that upon
the death, abandonment of family, or incapacity to act of one parent, the
guardianship devolved onto the other. Former Article 72A, §4 provided
that the sole surviving parent, by will, could appoint a guardian of the
person or property or both of the minor child and that either parent, by
will, could appoint a guardian of the property that a minor would inherit
from that parent.

   In Chapter 3 of the Laws of Maryland 1969, the General Assembly

amended former Article 93 and enacted a new Article 93A. Article 93 was
titled "Decedents' Estates", and Article 93A was titled "Protection of
Minors and Other Persons Under Disability." In Article 93A, provisions
dealing with appointment of a guardian of property were set forth in
Subtitle 2, while provisions dealing with appointment of a guardian of the
person were set forth in Subtitle 7. Former Article 93A, §702(a), like current ET
§13-702(a), permitted the orphans' courts to appoint a guardian of the
person of a minor only when neither parent was serving as guardian of the
person and no testamentary appointment had been made.

C. Circuit Court

  In addition to concurrent jurisdiction with the orphans' courts under

ET §13-105(a), the circuit courts have jurisdiction with respect to
guardianship of the person of a minor under the Family Law Article ("FL"
Article) and the Courts and Judicial Proceedings Article ("CJ" Article).
This additional jurisdiction is not shared with the orphans' courts.

  The circuit courts have equity jurisdiction over guardianship, as well

as adoption and custody of minors. FL §1-201(a)(5) confirms that "[a]n
equity court has jurisdiction over . . . custody or guardianship of a child."
See also Carroll County v. Edelmann, 320 Md. 150, 577 A.2d 14 (1990);
In re Adoption/Guardianship No. 87A262, 323 Md. 12, 590 A.2d 165
(1991); Kicherer v. Kicherer, 285 Md. 114, 400 A.2d 1097 (1979). In
Wentzel v. Montgomery General Hospital, 293 Md. 685, 447 A.2d 1244
(1982), cert. denied, 459 U.S. 1147 (1983), the Court of Appeals stated:

           The parens patriae jurisdiction of the circuit court
       in this State is well established. The words "parens
       patriae," meaning "father of the country," refer to the
       State's sovereign power of guardianship over minors
       and other persons under disability. ..         It is a
       fundamental common law concept that the jurisdiction
       of courts of equity over such persons is plenary so as
       to afford whatever relief may be necessary to protect
       the individual's best interest.

293 Md. at 702.

    Parents are the joint, natural guardians of their minor child. FL §5-

203(a)(1). A parent may become the sole natural guardian of a minor child
if the other parent dies, abandons the family, or is incapable of acting as a
parent. FL §5-203(a)(2). A decree of guardianship terminates the natural
parents' rights, duties, and obligations towards the child and eliminates the
need for further consent by the natural parent to adoption of the child. FL
§5-317(f). In Carroll County v. Edelmann, the Court of Appeals stated
that:

       The only express statutory authority for a court to
       terminate parental rights and obligations short of
       adoption is contained in Fam. Law. Art. §§5-313 and
       5-317, which permit a circuit court to terminate those
       rights and obligations through a decree of
       guardianship. But such a decree may be entered only
       upon the petition of a child placement agency or an
       attorney for the child. Moreover, the statute looks to
       the termination of rights of both natural parents and
       the granting of custody of the child to the placement
       agency for adoption.

(Emphasis in original.) Only circuit courts can enter a decree terminating
parental rights. In re Adoption, 323 Md. at 21.

   In addition, Subtitle 8 of CJ Title 3 gives the circuit court (or, in

Montgomery County, the District Court) sitting as the juvenile court the
authority to adjudicate a child in need of assistance, "CINA," or a child in
need of supervision, "CINS." The juvenile court may award custody or
guardianship of a CINA to "a relative or other fit person, upon terms the
court deems appropriate." CJ §3-820(c)(1)(i). The juvenile court may
also commit a child to temporary custody or guardianship under the
Department of Juvenile Services, local department of social services,
Department of Health and Mental Hygiene, or a public or licensed private
agency on the terms the court considers appropriate. CJ §3-820(c)(1)(ii).
Jurisdiction over the child continues until that person reaches 21 years of
age unless terminated sooner. CJ §3-806.

D. Conclusion

  The jurisdiction of the circuit courts under the Family Law Article

and the Courts Article is exercised generally in derogation of the rights of
the natural parents. The jurisdiction of the circuit courts and orphans'
courts under the Estates and Trusts Article is exercised generally in the
absence of a living natural parent with rights over the minor. Because the
orphans' courts have been given authority to appoint a guardian of the
person of a minor only in the circumstances set out in ET §13-702(a), they
may not do so in other circumstances.

                                     II

   Guardianship for Tuition-Free Public School Placement

   Article VIII, §1 of the Maryland Constitution guarantees a system

of "Free Public Schools." See also §§1-201 and 7-101(a) of the Education
Article ("ED" Article). See generally 72 Opinions of the Attorney General
262 (1987); 57 Opinions of the Attorney General 176 (1972).

  The State's free public schools are only open to residents, however.

The compulsory school attendance law refers to "[e]ach child who resides
in this State ..." ED §7-301(a), and the State Board of Education has
observed as follows:

             Of course, a student must be a bona fide resident of
         the school district in order to be eligible for free school
         privileges. Obviously, a child who resides in Delaware,
         Pennsylvania, or Washington, D.C. should not be
         eligible for free attendance within Maryland's public
         school system. Further, a child who has established a
         superficial residence in a school district for the sole
         purpose of attending its schools is not a bona fide
         resident... Nor does a temporary resident of a school
         district qualify for free public education. ..

               From the cases we have cited above, it appears
         that a child is a bona fide resident if at a minimum that
         child actually lives within the school district with a
         parent, guardian, or other individual who has legal
         custody of that child. The determination of whether a
         child is a bona fide resident is a factual one and must
         be made on an individual basis.

2 Opinions of the Maryland State Board of Education 123, 130 (1979).

   ED §4-120.1 addresses the situation when a child is in an out-of-

county living arrangement. This statute defines "child in an out-of-county
living arrangement" as "a child who is placed by a State agency, a licensed
child placement agency as provided by §5-507 of the Family Law Article,
or a court in a county other than where the child's parent or legal guardian
resides." The statute goes on to provide that the term "does not include
a child living with a relative, stepparent or a person exercising temporary
care, custody or control over a child at the request of a parent or guardian
of the child."

  Because the law generally restricts free public education for a child

to the county of residence of the child's parents or legal guardian, some
individuals seek court appointment of a guardian, even when the parents
are living, for the sole purpose of establishing eligibility for the child to
attend free public school in a county of choice.

  For the reasons given in Part I above, orphans' courts only have

jurisdiction to appoint a guardian of the person of a minor when neither
parent is serving as guardian, because both parents have died or the
surviving parent does not have legal responsibility for the minor, and no
testamentary appointment has been made. When appointment of a
guardian is sought for the sole purpose of permitting a child to attend a
public school in a county other than where the child's parents reside, the
orphans' courts are without jurisdiction to appoint a guardian. Such an
appointment is not made under Subtitle 7 of ET Title 13.

                                 III

                            Conclusion

   In summary, it is our opinion that orphans' courts have jurisdiction

to appoint a guardian of the person of a minor only in those instances when
neither parent is serving as guardian and no testamentary appointment has
been made. Orphans' courts may not in effect invoke the doctrine of
parens patriae, reserved to the circuit courts, to appoint guardians in other
circumstances. Likewise, to the extent any doubt may exist concerning the
jurisdiction of the orphans' courts to appoint a guardian of the person of
a minor, that doubt must be resolved in favor of denying jurisdiction,
because under ET §13-106(b) the orphans' courts may only exercise
jurisdiction "expressly conferred by law."

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       Susan P. Whiteford
                                       Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1
Subtitle 7, Part II, of ET Title 13 provides for the appointment of a
guardian of the person of a disabled person. The circuit courts have exclusive
jurisdiction over protective proceedings for disabled persons. ET §13-105(b).

2
As discussed in Part IC below, a surviving natural parent's legal
responsibility for a minor is within the circuit court's jurisdiction. Unless a circuit
court has acted to end the natural parent's legal responsibility, the orphans' court
would not have jurisdiction to appoint a guardian of the person of a surviving
parent's minor child, even if the parent had abandoned the child.

3
FL §1-201(c) and (d) provide that the jurisdiction of the juvenile court
over a child in a CINA or CINS case is not impaired by the jurisdiction of the equity
court unless the latter orders, with respect to the child, adoption or guardianship
with right to consent to adoption or long-term care short of adoption.

4
In Martinez v. Bynum, 461 U.S. 321 (1983), the Supreme Court upheld
the constitutionality of a Texas statute that denied free public school education to
a child living separately from a parent, guardian, or other person having lawful
control if the child was residing in the district solely for the purpose of attending the
free public school.