When mental health concerns arise during divorce proceedings, what responsibility do courts have to halt the case and appoint protective representation? A recent El Paso Court of Appeals decision answers this question with significant implications for Dallas-area divorce cases involving parties with potential cognitive impairments. R.v. R., decided in August 2025, demonstrates the critical distinction between raising concerns about mental competency and actually preserving the issue for appellate review, and clarifies when courts may proceed with divorce hearings despite such concerns.
Per the published opinion, the case involved a husband who underwent a psychiatric evaluation during divorce proceedings at his own attorney’s request. Despite the evaluation and repeated expressions of concern by counsel, the case proceeded to final hearing without the husband testifying, without a formal competency determination, and without appointment of protective representation. The appellate court’s analysis provides crucial guidance on presumptions of competency, waiver of competency issues, and the burden parties bear to properly preserve mental health concerns in family law proceedings.
Background: A Divorce Complicated by Mental Health Concerns
F.R. filed for divorce from R.M.R. in El Paso County in 2019. The case proceeded slowly, with an evidentiary hearing beginning in October 2022 in associate court. After hearing R.M.’s testimony, the court granted a continuance for additional discovery. The case would remain pending for over a year before the competency issue arose.
In March 2023, a significant development occurred: F.R.’s own attorney requested that he be ordered to undergo a mental examination. The associate court granted this request, and F.R. was evaluated by a psychiatrist who provided a written report. Notably, this psychiatric evaluation was never introduced into evidence at any subsequent proceeding, and while a purported copy was attached to F.R.’s appellate brief, the El Paso Court of Appeals could not consider it because it was not properly made part of the appellate record.
In September 2023, six months after the psychiatric evaluation was completed, the court held a judge’s conference where F.R.’s mental competence was the sole topic. The court and parties discussed the evaluation results and how a guardianship might be initiated. At this conference, the judge made several critical statements that would later prove significant. The judge advised the parties “[t]he [c]ourt’s not going to try to resolve this issue,” and, addressing F.R.’s counsel specifically, stated “this is ultimately your client, your issue at some point.”
The judge also expressed concern about the passage of time, noting “[b]ack in … in March of this year this was brought to the [c]ourt’s attention. We’re now in September so I think at some point the parties have to figure out what they want to do here. It’s been six months.” The judge suggested the parties take two weeks to “decide what you want to do with the case, but we’re going to have to move on it.”
Three months later, in December 2023, the associate court called the case for “continuation of a final divorce hearing.” When the court directed F.R.’s counsel to present his case, counsel responded “we’re done,” explaining that R.M. had already testified and F.R. was not going to testify. Counsel stated: “I can’t put Mr. R. to testify, so we’re done.”
The court explained its view that the psychiatric evaluation was not “the equivalent of a finding of incompetency” and that “the probate court is the only court that can make the formal determination of competency.” The court then proceeded with the hearing. When asked if he had other witnesses to present, F.R.’s counsel said no.
After R.M. completed presenting her case, the court instructed both parties to submit their proposed relief within ten days. In response, F.R. submitted a “Position Statement” that began: “At this moment in time, I do not believe my client, F. R., is competent to express his wishes. However, during prior conversations, prior to his psychiatric evaluation, my client he has expressed that his wished the following.” The statement then outlined F.R.’s previously-expressed wishes regarding property division and was signed by counsel “approved as to form only.”
The associate court subsequently issued findings of fact, conclusions of law, and recommendations. Among other findings, the court found: (1) no evidence was presented that any judicial finding had been made that F.R. is mentally incompetent; (2) F.R.’s counsel did not file a written motion or make an oral request for a judicial finding of mental incompetence; and (3) credible evidence was presented that F.R. had recently made motor vehicle purchases independently and could conduct his affairs without assistance.
The court’s conclusions of law included that F.R. “waived the issue of [his] mental incompetency” in three ways: by failing to request a judicial finding of incompetence, by not initiating guardianship proceedings during the nine months after the issue was first raised, and by submitting the Position Statement expressing his wishes on property division.
F.R. filed a request for de novo final hearing in the district court, specifically requesting a jury trial. At the district court hearing on this request, F.R.’s counsel offered several reasons for requesting a jury trial, including that F.R. “didn’t testify” at the associate court hearing, there were “fact issues regarding separate property,” the issues were “to protect his rights” given that he didn’t “fully understand,” and the associate court had initially tried to determine how to get F.R. a guardianship but then said at final hearing that competence had not been proven.
Counsel conceded that “the presumption of competence was not rebutted” at the associate court hearing and acknowledged that a jury trial “might not be a right, but it is discretionary.” The district court denied the request for jury trial, found no error by the associate court, and adopted the associate court’s recommendations without change.
Legal Framework: Presumption of Competency and Proper Preservation
Understanding the appellate court’s analysis requires familiarity with how Texas law treats mental competency in civil proceedings. Under Texas Rule of Evidence 601(a), every person is presumed competent to testify. Additionally, Texas Health and Safety Code Section 576.002(b) creates a rebuttable presumption that a person is mentally competent unless a judicial finding to the contrary is made under the Estates Code.
This presumption places a significant burden on the party claiming incompetence. Clear evidence must be presented to overcome the presumption, and merely expressing concerns or obtaining a psychiatric evaluation is insufficient without formal action to establish incompetence through proper proceedings.
Courts review determinations of waiver under an abuse of discretion standard, meaning the trial court’s decision will be disturbed only if it was “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Similarly, denials of motions for de novo hearings are reviewed for abuse of discretion.
The Court’s Analysis: Waiver Through Inaction
The El Paso Court of Appeals systematically addressed each of F.R.’s arguments, providing guidance that extends beyond this particular case to all Texas divorce proceedings where mental competency concerns arise.
Waiver of the Competency Issue
F.R. argued the associate court erred by determining he waived his mental competency issue by submitting a position statement expressing his wishes on property division. The appellate court disagreed, noting the associate court actually found waiver based on three separate grounds, not just the position statement.
First, F.R. failed to request that the associate court make a judicial finding of mental incompetence. Despite expressing concerns and sharing the psychiatric evaluation, neither F.R. nor his counsel ever formally asked the court to determine competency. Second, F.R. did not initiate guardianship proceedings during the nine-month period after the issue was first raised. The associate court had made clear in September 2023 that this was F.R.’s responsibility, not the court’s, yet no such proceedings were initiated.
Third, regarding the position statement, while it reiterated counsel’s belief that F.R. was not competent, the statement “sought no related relief, asserted no objection to the case being decided on the merits, and instead outlined [F.R.]’s prior-expressed wishes as to how the parties’ community property should be divided.” The court found F.R. had “identifie[d] no reason why such information would have been conveyed to the court if not to assist it in dividing the parties’ property.”
Critically, the court noted that “at no point during or after the final hearing in the associate court did [F.R.] object, ask for a continuance, or request any other relief relating to his alleged mental incompetence.” This inaction proved fatal to preserving the issue for appeal.
Proceeding to Final Hearing
F.R. argued the associate court abused its discretion by “proceeding to final hearing,” claiming the court had previously indicated it would “resolve the competency and/or guardianship issue.” However, the appellate court found F.R. mischaracterized what occurred at the September 2023 judge’s conference.
At that hearing, the court did not indicate it “will resolve” the competency issue but rather stated it was “not going to try to resolve this issue” (emphasis by appellate court). The court clearly advised F.R.’s counsel “this is ultimately your client—your issue at some point” and noted that six months had passed since the issue was first raised, suggesting “the parties have to figure out what they want to do here.”
Furthermore, when the final hearing occurred in December 2023, F.R.’s counsel affirmatively told the court “we’re done” and “we’ll let the court decide,” expressly declining to present any witnesses or other evidence. The court emphasized that “at no point during or after the hearing did [F.R.] object, ask for a continuance, or request any other relief relating to his alleged mental incompetence.”
The appellate court also noted that F.R. “neither offered the psychiatric evaluation in evidence at any point, nor challenges the associate court’s finding that ‘[c]redible evidence was presented at the final hearing that [F.R.] has recently made motor vehicle purchases on his own without the assistance of a guardian and that he can conduct his affairs without the need of a guardian or assistance.'”
Guardian Ad Litem
F.R. contended both courts abused their discretion by failing to appoint a guardian ad litem under Texas Rule of Civil Procedure 173.3. The appellate court rejected this argument based on the limited scope of Rule 173. Under that rule, a guardian ad litem’s role is merely “to ‘determine and advise the court whether a party’s next friend or guardian has an interest adverse to the party.'”
Because no guardian or next friend was involved in F.R.’s case, Rule 173 was inapplicable. F.R. identified no other authority under which either court had a duty or discretion to appoint protective representation. The court’s analysis reflects that Texas law does not impose a sua sponte obligation on courts to appoint guardians ad litem simply because competency concerns are raised—the party raising such concerns must take affirmative steps to protect their interests.
Denial of De Novo Hearing
Finally, F.R. argued the district court abused its discretion in denying his request for a jury trial by “basing [its] decision on incorrect facts from the final hearing and recommendations of the Associate Judge, primarily that [F.R.]’s counsel failed to file pleadings and raise the issue of [his] mental capacity in a timely manner.”
The appellate court found no factual error. The associate court did not find that F.R.’s counsel failed to express concerns or obtain a psychiatric evaluation. Rather, it found that while counsel “expressed a belief … during pretrial hearings … [F.R.] may be mentally incompetent,” counsel “did not file any pleadings with the Statutory Probate Courts … or take[ ] any affirmative action … to obtain a judicial finding [he] is mentally incompetent.”
The record supported these findings. F.R.’s counsel had told the associate court “I just honestly don’t know if it’s my place to get [F.R.] a guardianship…. I’m just trying to get him divorced and, you know, these issues are outside of what my scope is,” and told the district court “I tried to reach out to LULAC [to refer F.R. for a guardianship], and—but at one point, it was not—it’s not kind of what I was hired to do…. That was a little bit outside the scope of [ ] what I was retained to do.”
However, the court emphasized that “such a limitation in the scope of counsel’s representation neither shifted responsibility for representing [F.R.] nor gave rise to error on the part of the courts below, particularly given the associate court’s uncontested finding that evidence of [F.R.]’s competency was presented.” The court also noted that F.R. had conceded at the district court hearing that the presumption of competency was not rebutted.
Key Takeaways for Dallas Divorcing Couples
The decision offers several critical lessons for individuals involved in Dallas-area divorces where mental competency may be at issue:
The Presumption of Competency Is Strong: Texas law presumes every person is mentally competent. Merely obtaining a psychiatric evaluation or expressing concerns to the court is insufficient to overcome this presumption without formal action seeking a judicial determination of incompetency.
Affirmative Steps Are Required: When competency concerns arise, the party or their counsel must take specific, affirmative steps—such as filing formal motions for competency determinations, initiating guardianship proceedings in probate court, or requesting continuances and protective representation. Passive expression of concerns without seeking relief will result in waiver.
Scope of Representation Matters: Counsel’s acknowledgment that guardianship proceedings were “outside the scope” of the representation did not excuse F.R.’s failure to protect his interests. If an attorney’s scope is limited, the client (or someone acting on the client’s behalf) must ensure other representation is obtained for matters outside that scope.
Timely Action Is Essential: The associate court noted that six months passed between the psychiatric evaluation and the September 2023 conference, and three more months passed before the final hearing. Courts expect parties to act with reasonable diligence when asserting incompetency.
Strategic Considerations in Cases Involving Mental Health
What we’ve learned from this case is the critical importance of taking formal, documented steps when mental competency concerns arise in divorce proceedings. Different approaches might have included filing a written motion requesting a formal competency determination, presenting the psychiatric evaluation as evidence at the final hearing, objecting on the record to proceeding without resolving competency, and formally requesting a continuance to initiate probate proceedings.
Alternative strategies could have addressed the scope of representation issue earlier in the proceedings. If F.R.’s divorce counsel recognized that guardianship matters fell outside their retained scope, different preparation might have included referring F.R. to separate counsel for probate matters, helping family members understand the need to initiate guardianship proceedings, or seeking court appointment of protective representation under appropriate statutory authority.
For those working with a Dallas family law attorney, this case demonstrates the value of proactive advocacy when concerns about a party’s mental capacity arise. Experienced counsel can identify the proper procedures for protecting a potentially incapacitated party’s interests while ensuring procedural requirements are met to preserve issues for potential appeal.
Protecting Vulnerable Parties in Divorce Proceedings
Divorce cases involving parties with cognitive impairments or mental health conditions present unique challenges that require careful navigation of both family law and probate law. The decision illustrates that Texas courts will not automatically halt proceedings or appoint protective representation simply because concerns are raised, parties must take affirmative steps through proper legal channels to obtain such protections.
At our Dallas family law practice, we bring over 25 years of experience handling divorce cases involving complex circumstances, including those where mental health or capacity concerns arise. We serve clients throughout the Dallas metropolitan area, including Irving, Richardson, Garland, Mesquite, DeSoto, Grand Prairie, Lakewood, Highland Park, Cockrell Hill, Lancaster, Seagoville, and Duncanville.
We understand that when cognitive impairments or mental health conditions affect divorce proceedings, swift and appropriate action is essential to protect all parties’ interests. Whether you’re concerned about your own ability to participate fully in divorce proceedings, have concerns about your spouse’s capacity, or are a family member seeking to protect a loved one’s interests in divorce, we provide honest assessments grounded in realistic expectations based on current Texas law.
If you’re involved in or considering divorce proceedings where mental capacity may be an issue, we invite you to schedule a consultation to discuss your specific circumstances. Our experienced team can evaluate the situation, explain the relevant legal standards and procedures, and develop a strategic approach tailored to protecting the interests of all involved.
Don’t navigate the complexities of divorce with mental health complications alone. Contact us today to learn more about how our comprehensive divorce services can help you achieve appropriate outcomes while ensuring proper procedural protections. For a Dallas divorce attorney consultation, call our office or visit our contact page to begin the conversation about protecting your rights and interests. Learn more about our approach to family law and how we can help you navigate challenging divorce circumstances with both strategic precision and compassionate support. Whether you need guidance on custody matters or comprehensive divorce advocacy, we’re here to provide the experienced representation you deserve as a trusted divorce attorney near me for Dallas-area residents facing complex family law challenges.
