Abstract—The court must consider the physical and mental
health of all individuals involved in awarding custody.
However, an individual’s mental health can affect the
individual’s ability to participate in the case. That is, in some
cases, the individual’s mental health has so greatly affected the
individual’s abilities that he or she is not competent to
participate in the proceeding. In that circumstance, the legal
practitioner is confronted with legal and ethical issues. Both the
federal and state constitutions recognize a party’s constitutional
right to participate in a legal proceeding determining the
custody of her child. In Minnesota, under Rule 1.14, an
attorney may take reasonably protective action, and seek the
appointment of a guardian ad litem, conservator, or guardian if
the attorney believes that a client with diminished capacity is at
risk of substantial physical, financial, or other harm unless
action is taken and that the client cannot adequately act in her
own interests. This paper will explore the topic through two
custody case studies one in a divorce proceeding and the other
in a paternity proceeding, and the attorney’s use of forensic
experts to assist us in advocating for our incompetent clients in
custody cases.
Index Terms—Custody, due process, ethics, mental
competency.
The authors are with Spangler and de Stefano, PLLP, St. Paul, MN 55105,
USA (e-mail: evon_spangler@qwestoffice.net,
perry_destefano@qwestoffice.net).
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Cite:Evon M. Spangler and Perry M. de Stefano, "A Practitioner’s Viewpoint: Effectively Representing an
Incompetent Client in Custody Proceedings," International Journal of Social Science and Humanity vol. 3, no. 5, pp. 464-470, 2013.