Prior to the passage of the ADA, commentators on HIV and custody issues relied on School Board of Nassau County v. Arline to argue that HIV should not presumptively limit an award of custody.
In Arline, the Supreme Court held that the Rehabilitation Act prohibited a school board from dismissing a teacher with tuberculosis, a contagious disease, if the teacher was "otherwise qualified" to perform her job.
Although the Rehabilitation Act is not the applicable law in an individual custody determination, the legal analysis can be used to ensure that a parent's disability does not result in a per se denial of custody. As in employment discrimination cases such as Arline, Family Court judges should conduct individual assessments based on the facts of the case to determine whether a parent is "otherwise qualified" to care for the child.
In In re Carney, California's highest court concluded that a physical disability limiting a parent's ability to participate with his children in physical activities is not a changed circumstance sufficient to warrant a change custody.
The court referred to state and federal anti-discrimination laws aimed at integrating disabled persons into the mainstream, and stated that "[n]o less important to this policy is the integration of the handicapped into the responsibilities and satisfactions of family life, cornerstone of our social system. . . . [T]rial courts must avoid impairing or defeating [this] public policy."
The Carney decision is significant precedent for relying on disability-based anti-discrimination laws in custody and visitation cases.
Although disability-based anti-discrimination law provides some ammunition with which to fight improper and arbitrary decisions in Family Court, its use is limited in practice. Family law has well-established legal standards on which Family Court judges are accustomed to relying. These standards include the "best interests of the child," preventing harm to the child, and "material change of circumstances."
It is very difficult to convince judges making custody or visitation determinations to rely on different legal standards, such as anti-discrimination law, which they may not find relevant. In Sherman v. Sherman, the Tennessee Court of Appeals confronted this tension, noting that [d]espite the specter of AIDS, this appeal is essentially a dispute between divorced parents concerning visitation.
While the courts must be concerned when the question of AIDS is raised in the context of child custody and visitation . . . we should continue to apply the settled principles and precedents normally brought to bear in [these] proceedings. Existing law provides sufficient direction for dealing with AIDS in the context of domestic relations proceedings. Accordingly, the possibility of exposure to [HIV] does not require us to fashion new legal principles or to depart from existing law.
This passage from the Sherman decision embodies the inclination of Family Court judges to rely on well-settled family law principles. While such reliance is appropriate, Family Court judges should be prepared to evaluate these standards in light of contemporary public policy considerations, as the court did in Carney.
The court in Carney examined the effect of a custodial father's paralysis on his ability to care for his children in deciding whether the father's disability was a "changed circumstance" sufficient to warrant an award of custody to the mother after the father had maintained custody for five years.
The court held that custody decisions cannot be based on a parent's disability alone. Rather, the court must evaluate carefully all the relevant facts to "determine whether the parent's condition will in fact have a substantial and lasting adverse effect on the best interests of the child."
According to the court in Carney, the factors that should be considered in determining whether a parent's disability will have a lasting impact on the child include:
1) the parent's actual and potential physical capabilities;
2) how the parent has adapted to the disability;
3) how the child and other members of the household have adapted; and
4) any special contributions the parent makes to the family
A more complex and challenging issue raised by some of the reported decisions is whether a parent's health status has an impact on her ability to care for her children. This inquiry requires an evaluation of the parent's specific physical and mental conditions and an examination of how the parent is dealing with these conditions.
For example, in Steven L. v. Dawn J., a Family Court judge in Brooklyn found that it would not be in the "child's best interest to be left in the sole care of a person who was seriously incapacitated because of an illness or disease."
The court continued the award of custody to the mother because "although she has felt weak at times, she has not been incapacitated by her condition and has maintained primary care for her daughter at a high level of performance."
Without explicitly stating so, the court in Steven L. evaluated whether the parent was the "sole" caretaker and whether she was "seriously incapacitated." In this case, the mother's "high level of performance" was sufficient. The court raises the question of whether a parent's capacity should be evaluated in terms of whether other caretakers are involved.
In Jane W. v. John W., a mother sought to limit her daughter's visitation with her HIV-positive father who had developed several HIV-related conditions, including tuberculosis and pneumostysis carinii pneumonis (PCP). The court relied on traditional visitation case law that grants parents liberal visitation in the absence of any harm to the child posed by the visits
In considering the father's rights, the court identified the only relevant issue as whether the father could care for the child during visits. The court granted the father visitation since the father was "entirely capable of caring for the child" and had cared for the child throughout her life. Curiously, the court did not examine the father's particular physical limitations even though he had serious medical conditions
Similarly, in John T. v. Carraher, the court found that it was in the child's best interests to remain with his foster mother because her ability to care for him was compromised only by her illness only "at an uncertain point in the future. She is presently fully capable of parenting [the boy]
In contrast, in H.J.B. v. P.W., the appellate court affirmed the lower court's finding that a father's HIV status was a material change in circumstance despite a lack of any specific [*pg 149] evidence of the father's physical or emotional condition. The court instead focused on the father's failure to disclose his HIV status to the court.
there is more exhaustive research to be done, but perhaps this will give you a start.
