1996 Parents living with HIV can encounter a barrage of legal hurdles in maintaining relationships with their children. Despite this, however, parents with HIV have fared better in custody cases than one might expect. The emotional, frequently contentious nature of custody disputes, often produced in the wake of fracturing relationships, can cloud the parties' focus on solutions that truly serve a child's best interests. Making sure a child stays in contact with both parents requires continued communication between parties who may feel intense hostility toward each other. It is not surprising, then, that HIV has been used as a weapon in custody proceedings, a product of either ignorance and fear, or a willingness to exploit phobic perceptions of HIV and the behavior that causes its transmission.
Courts afford the rights of biological parents considerable weight in custody disputes.
Fortunately, most reported custody cases that focus on HIV status have rejected arguments that a parent's or household member's HIV infection should control a decision as to who can best parent a child. The court noted the widely accepted conclusion that there is no risk of HIV infection through close personal contact or normal household activities. In adoption cases, in which deference to the rights of the biological parents plays a different role, the results are less predictable. In the 1993 case of The Adoption of Nicholle Johnson , the Indiana Court of Appeals affirmed a trial judge's decision to allow a biological mother to withdraw her consent to the adoption of her child after learning that both the prospective mother and father who had cared for the child since birth were HIV-positive. However, in the more recent case of The Interest of John T. , a Nebraska appellate court concluded that a state agency's plan to remove a toddler from his foster parents solely because the foster mother had HIV was not in the child's best interests.