On February 6, 2020, an HIV health-care advocate sat in a courtroom waiting for a hearing and watched another parent’s case play out. The father wanted to change a custody arrangement. The mother of his children had suffered a mental health break and was very likely to face homelessness, and he was trying to keep her in the children’s lives in a way that set her up for success.
When it ended, he politely asked the hearing officer or the court social worker to recommend resources that could help her with public assistance and benefit applications. The answer: “we don’t know, we just don’t do that.”
The advocate was shocked. The request, as the advocate saw it, could not be rare. Before he left, the advocate handed him details for a local federally qualified health center, Access Health Louisiana, which receives Ryan White funding.
Stigma in custody cases
The moment pushed the advocate into reading about family courts, child welfare and HIV. The record is uncomfortable. A 2003 report from the ACLU’s AIDS Project found providers whose clients had lost custody, been denied visitation, or been barred from fostering or adopting because of their HIV status. Parents have had custody arrangements hurt merely for associating with people living with HIV. In 2015, POZ Magazine covered Donna Branum, a Kansas mother who temporarily lost custody of her children because of her fiancé’s HIV status. Her ex-husband had petitioned the court, claiming the fiancé was a “health risk” to the children. She was eventually restored to a joint custody arrangement.
A 2013 UNAIDS report, Judging the Epidemic, called denying custody and visitation to parents with HIV “arbitrary, disproportionate and ineffective” for any public health purpose. It urged courts to weigh “actual” risk to a child rather than “theoretical” risk. The same point was made earlier, in the 1992 book AIDS Agenda: Emerging Civil Rights Issues, which said family court can let “the worst characteristics of litigants” emerge, with divorcing parents raising prejudice in place of concerns about parenting ability. Both sources cite the American Bar Association’s defence of parents living with HIV, and cases where such parents had to bring in medical experts to explain what doctors already know: HIV cannot be passed on through casual household contact.
The legal protections
A 1998 Supreme Court decision, Bragdon v. Abbott, brought HIV status, including asymptomatic cases, under the Americans with Disabilities Act. The case concerned a dentist who refused to treat Sydney Abbott. It fed into the Department of Justice’s August 2015 guidance on parents and potential parents, which names HIV twice as a covered disability. Under Title II of the ADA and Section 504, the guidance says, a child welfare agency cannot refuse to place a child with a prospective foster or adoptive parent because the parent has a friend or relative with HIV.
Gaps in the response
The advocate points to a less-studied problem too: abusers using family court processes to control their victims. The Centers for Disease Control, in a report about a decade old, described domestic and intimate partner violence as “both a risk factor for HIV, and a consequence of HIV.” The advocate says the data is overdue for an update.
The National HIV Strategy does not mention family courts or child welfare agencies once. The advocate argues these institutions are well placed to affect community health, since HIV disproportionately affects Black women, but only if judges and agencies stop penalizing poverty and confusing it with negligence.
Louisiana’s plan to end the HIV epidemic, Get Loud Louisiana, goes further. “We recognize the lives of PLWH are often impacted by people not working in HIV,” it states. The advocate believes it is the first plan to include activities to engage family courts, social workers and child welfare agencies on policy.
