Family Law Issues
The documents here cover parenting issues such as custody of children related to a divorce or separation action; medical care for children of HIV-positive mothers; and health care for older children in foster care. The family law category also involves marriage rights for people with HIV, disclosure requirements for spouses, and permanency planning. People with HIV often face discrimination in family court based on misinformation about the transmissibility of HIV and stigma associated with HIV-positive people. This discrimination is often compounded by other issues, such as race, socioeconomic status, and sexual orientation. Because family law issues are generally governed by state law, advocates should be familiar with the laws in their state.
Doe v. Division of Youth & Family Svcs., Amended Complaint
This December 2002 complaint was filed on behalf of a woman who was tested for HIV during her pregnancy without her consent, followed by the unauthorized disclosure of her positive HIV serostatus, the involvement of state child protective services, and the forced antiretroviral treatment and temporary removal of her newborn infant. The complaint alleges that the defendants' actions violated the Americans with Disabilities Act, the Rehabilitation Act, the New Jersey Law Against Discrimination, the New Jersey AIDS Assistance Act, the United States Constitution, and the New Jersey Constitution. Although based in part on New Jersey law, the complaint provides a useful template for advocates representing parents whose difficulties or disagreements with health care providers result in the involvement of child protective services and challenges to their fitness as parents. The complaint's state law claims could easily be adapted to meet the requirements of other state laws.
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Doe v. County of Centre, 242 F.3d 437 (3rd Cir. 2001)
In this opinion, the Third Circuit considered a challenge to a policy prohibiting the placement of HIV-negative foster children in a home in which a family member has HIV unless the foster parents agree to the release of the family member’s diagnosis to the child’s parents and the child’s parents provide consent to the placement. The Does, who applied to foster a child after adopting Adam, a twelve-year-old boy living with AIDS, brought a claim under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act when their application was denied on the basis of Adam’s HIV-status. The Third Circuit held that the Does were “qualified individuals” under the Acts because of their relationship with Adam, and that the policy facially discriminated against them because of Adam’s disability.
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