IJSSH 2013 Vol.3(5): 464-470 ISSN: 2010-3646
DOI: 10.7763/IJSSH.2013.V3.284

A Practitioner’s Viewpoint: Effectively Representing an Incompetent Client in Custody Proceedings

Evon M. Spangler and Perry M. de Stefano
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.

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