The Effect of Aids on Child Custody Determinations

Aline Cole Barrett & Michelle A. Flint, The Effect of Aids on Child Custody Determinations, 23 Gonz. L. Rev. 167 (1987)

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Five years into the epidemic, the transmission of Acquired Immune Deficiency Syndrome (AIDS) continues to increase at a rapid rate. It is estimated that by 1991 five million people in the United States may be carrying the AIDS virus. The virus was isolated and identified in late 19832 and evidence of its transmission routes and affected population groups soon followed. AIDS cases have been concentrated in New York, California, Florida, New Jersey, and Texas, but cases have been reported in all fifty states. As the disease has extended beyond the original high risk areas, public fear of its transmission has grown. The fear intensified with the discovery that an asymptomatic carrier could transmit the disease by sexual activity to male or female partners. Although the Center for Disease Control has established rational guidelines for preventing transmission of the disease and for dispelling misconceptions’ about its spread, the public has remained confused and afraid. Some public officials and medical personnel have formed opinions at variance with current medical data, and have recommended restrictive and somewhat invasive measures for dealing with the disease and its victims. These measures include quarantine and mass screening of all potentially infected persons, exclusion of infected children from school, denial of medical care and insurance to AIDS victims, and expulsion from military service. Such responses are indicative of the ethical and legal dilemma produced by the AIDS epidemic. Each individual, and society as a whole, must strike a balance between ensuring the rights of persons vulnerable to discrimination and protecting public health.

This comment explores one facet of that dilemma: the effect of AIDS on custody proceedings in which one or both parents are at risk for acquiring the disease. This issue involves examining general custody law as it has been applied to the cases involving three kinds of parents for whom custody is often controversial: disabled, diseased, and homosexual parents. The decisions in those cases will then be applied to specific characteristics and problems pertinent to custody cases where infection with AIDS is an issue.


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David Kazemba J.D. Candidate 2014

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