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

Abstract

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. I. INTRODUCTIONRepresenting a client in a custody proceeding is often a complex, complicated endeavor for an attorney. This is particularly due to the nature of contested custody cases which are often volatile and high conflict. However, the complexity of a contested custody proceeding increases substantially when an attorney's client is incompetent due to the inability of the client to assist counsel in defending the case. Moreover, the client has constitutional due process rights in cases involving the custody of a child. Balancing the wishes of a client who is incompetent with his or her due process rights is extremely challenging. The challenges increase due to the numerous practical and ethical issues that an attorney must take into consideration and analyze in a case where an attorney believes that a client is incompetent.This article provides a practitioner's viewpoint on the situation in which an attorney is faced with moral and professional dilemmas while representing a client the attorney believes is incompetent. There are numerous laws and rules that intersect with each other, including statutory laws, constitutional laws, and the rules of court. Part II provides an overview of custody law outlining Minnesota's Manuscript received April 3, 2013; revised June 25, 2013. This work was supported in part by Spangler and de Stefano, PLLP.The authors are with Spangler and de Stefano, PLLP, St. Paul, MN 55105, USA (e-mail: evon_spangler@qwestoffice.net, perry_destefano@qwestoffice.net)."best interests of the child" standard for dealing with custody disputes, and an overview of constitutional law as it applies to custody proceedings. The Minnesota "best interests of the child" standard provides no guidance to an attorney...