HIV Infected Parents and the Law: Issues of Custody, Visitation, and Guardianship

Abstract

This book chapter explores two challenges HIV-infected parents, or those perceived to be living with HIV, face with respect to their children. The first part examines the law and trends of custody and visitation rights, particularly in the context of, or following, divorce proceedings. (At the time the book was published, HIV-positive parents had a more difficult time than they currently do in maintaining their custody and visitation rights, too often having to litigate their rights.) The second part looks at ways a parent, particularly a single parent, attempts to ensure her children’s well-being should she become ill or die. (The chapter was written prior to the availability of protease inhibitors, when there often was a relatively short time between diagnosis and death.) The chapter recommends a number of innovations to ease this process for parents and children, focusing on these two ideas: 1) state legislatures should establish “springing guardianships,” which could be established while the parent is healthy, but would become effective upon her illness or passing; and 2) permitting kinship foster parents to become long-term guardians, without needing to terminate the parental rights of the ill parent. (Again, since the time this book was published, these recommendations have been adopted and implemented by many states.)