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Anonymous
Unregistered

HIV & Child Custody
      #154684 - 05/27/05 08:29 AM

Does anyone know the laws regarding hiv and child custody? My ex is saying she is too afraid to let me have my kids unsupervised. That I might have a blood accident or something and not tell her or not protect them. She said that because I am currently dating someone and not disclosing my status (but using safe sex) that the court would say I am irresponsible and not give me my kids. She is also saying that because I got hiv during our marriage by cheating on her and then sleeping with her unprotected, they would not give me custody because she was pregnant at the time. (i was sleeping with men, but did not know i had hiv). She said the courts would find me irresponsible and not let me have my kdis. Can they do that? What are the laws concerning hiv? Are my kids at risk?

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esquire
Regular

Reged: 05/29/03
Posts: 37
Loc: Washington, DC Metropolitan Area
Re: HIV & Child Custody
      #154696 - 05/27/05 04:25 PM

Laws regarding custody, visitation, and "best interests of the child" are all state-specific. If you have a local HIV/AIDS service organization near you (or anywhere in your state), contact them to see if they have a legal assistance section that can help you out.

--------------------
Esq.

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Anonymous
Unregistered

Re: HIV & Child Custody
      #155670 - 05/31/05 08:15 AM

You, my friend need a good attorney. I'm not sure if you live in the US and if so what state, but your history may give you trouble with custody.

Did you know that having unprotected sex when you have HIV without disclosing your status to your partner, may make you liable for damages? It is still unclear whether you can be arrested for a crime, i.e. reckless endangerment or manslaughter (if it is proven that the person died because of having unprotected with you without statuts disclosure).

ScotCharles

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Anonymous
Unregistered

Re: HIV & Child Custody new
      #155695 - 05/31/05 09:56 PM

But when I was with my wife unprotected, I did not know I had hiv, but was cheating on her. After i found out, we never slept together again. But when I was cheating on her, I was sleeping with her unprotected but I did not know i had hiv. Now, I am always practicing safe sex with my dates. (but not disclosing). Can she really keep my kids from me??

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Anonymous
Unregistered

Re: HIV & Child Custody
      #155717 - 06/01/05 01:38 PM

The courts are going to frown on your having sex without disclosing your status, regardless of if you're using protection or not. In some states it's even criminal. If your ex-wife is going to bring that up, I'd say she's got a pretty good chance that she'll get whatever she wants. You might consider saving the legal fees and agreeing to supervised visits for now. If you have the money, you could put up a helluva battle involving HIPAA and patient privacy rights. She can't just walk up to a jusdge and say "he's HIV positive," if she does you could sue the hell out of her. There has to be court orders subpoenaing your medical records before your status can be revealed in court.
Maybe she'll lighten up further down the road, and maybe your kids can have some some influence on her as they get older. Or, you could play dirty like she's doing, and threaten to tell your history to her future suitors. If you disclose your own status to them, you won't be breaking any laws, and she'll be viewed as damaged goods even though she's negative. Just don't say anything about her status. You won't need to.

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Mandy
Newbie

Reged: 05/21/05
Posts: 3
Loc: New JErsey
Re: HIV & Child Custody new
      #155740 - 06/01/05 07:23 PM

It depends on what state you live at. You need to check with your local HIV/AIDS organization. not only USA have laws, also other countries too. France is now trying to make a law to prosecute people that know their status without disclose. And about disclosing your status even if your using safe sex, again depends on where you live. In Cal USA, you don't have to disclose your status as long as you use condoms. In NY USA, you can't prosecute. I tried to prosecute my ex because he knew he was HIV positive and was told theres no law. Only 24 or 27 states in USA have HIV law on prosecute. Therefore, the only answer to your question is to contact your HIV/AIDS organization. basically, this site can't help you with your question. Only an HIV/AIDS organization.
Good luck!

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Anonymous
Unregistered

Re: HIV & Child Custody
      #155743 - 06/01/05 09:24 PM

I am in Massachusetts and I know they do not prosecute hiv positive people who do not disclose. So, would that piece of information be thrown out in court? Also, can she really not bring up my hiv status in court when deciding custody of children? She said she has every right when it comes to custody and that it is in the best interests of the children regarding custody and me learning the risks of transmission surrounding blood etc. She said the judge would want to know and it would not be based on hiv but on my disease and how irresponsible I have been in life. That she would not violate any laws...

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debtex
Legend

Reged: 03/21/05
Posts: 846
Re: HIV & Child Custody new
      #155746 - 06/01/05 10:00 PM

Hi, I'm so sorry about your dilema!! I'm also in Massachusetts, and read this post because I am worried about the same (although much different...I know my mother in law would try to take away my baby becuase of my "status"). I would be putting her grandson at risk.
And realy think about it!!! Massachusetts is the FIRST state to declare mass. to having same sex marriage, so what behavior is it that she is finding as "risky". You did not make it a habit to leave dirty needles laying around the house, or literally bleed down your childrens throat, or cut. What is so morally and legally wrong that you have done? You wond up getting hiv, and your whole life is going to change

.I do agree that if you were cheating on your wife and putting yourself at risk, you should have protected her, regardless!! In some sene you must have known that you may have contracted something if you knew you were sleeping around unprotected.

but this is about the children. You put them at no risk by being around them without supervision. Please, call your local aids organization and get legal help, your sex life is different than your parenting life.

Please keep us posted on how everything is going?


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ScotCharles
Legend

Reged: 05/06/05
Posts: 924
Loc: Los Angeles
Re: HIV & Child Custody new
      #155754 - 06/02/05 09:52 AM

Be aware!!!!

Positive Living
A monthly publication for people with HIV/AIDS
From AIDS Project Los Angeles
May 2000

Barebacking & HIV Disclosure: What's the Law?
By Brad Sears

If you are HIV-positive, dating and sex always involve the sticky questions of if, when, and how to disclose your HIV-status. Should you do it before you have sex? During the first date? Only if asked? Only if it becomes "serious"?

For each individual, the answers to these questions evolve from a blend of ethical, personal and practical considerations. People living with HIV have strongly advocated every position from "when you first meet" to "never."

At the point when you decide to have sex, however, the disclosure question is no longer solely up to you and your conscience. At that point, your decisions may have legal ramifications. Failing to disclose your HIV status to your partner may make you vulnerable to criminal prosecution or to being sued by your sexual partner.

Criminal convictions for exposing another person to HIV through sex are rare. Since the beginning of the AIDS epidemic, more than 300 people have been criminally prosecuted for exposing another person to HIV. Only a fraction of these cases involve exposure through consensual sex. (The others involve activities such as biting, scratching and spitting, or violent sex crimes such as rape or forcible sodomy.)

Of the cases involving sex, most have been brought against female prostitutes (and not their male customers) or by military prosecutors against military personnel. Less than one-sixth of these cases have resulted in convictions, and more than half of the convictions have been against military personnel.

While most of these prosecutions have proceeded under general criminal laws such as attempted murder, aggravated assault with a deadly weapon, attempted manslaughter and manslaughter, a number of states have passed specific statutes that make it a crime for a person to expose another to HIV through sexual activity.




California's "Willful Exposure" Law
The law makes it a felony punishable by up to eight years of imprisonment for an HIV-positive person to "willfully expose" another person to HIV through unprotected sex.
The law is narrowly drafted, however, so that it only applies to individuals who intend to infect others with HIV through sex. It is designed to prosecute cases like one in New York, where one man infected more than a dozen young women, not to police every sexual encounter engaged in by people living with HIV.

To be prosecuted under the law, you would have to do all of the following:

Have anal or vaginal sex. You cannot be prosecuted for oral sex. As to anal and vaginal sex, the law applies equally to men and women; tops and bottoms. The law punishes exposing someone to HIV through these types of sex. Your sexual partner does not have to actually become infected.

Know that you are HIV-positive. You cannot be prosecuted for sex that you had before you knew that you were HIV-positive.

Fail to disclose your HIV status. If you disclose before insertion, you cannot be prosecuted.

Fail to use a condom. Even if you do not disclose, you cannot be prosecuted unless you have "unprotected sex." The law defines "unprotected sex" as failing to use a condom. This means that every inserting penis has to be covered. Even if you are on the receiving end, you have a legal obligation to make sure that your partner wears a condom.

Have the "specific intent" to infect the other person. Most likely, this element will prevent the statute from being used to harass people living with HIV. To be prosecuted, you have to engage in the sexual activity with the specific intention of infecting the other person with HIV. Just knowing that you had HIV when you had sex will not be enough. The law explicitly states that: "Evidence that the person had knowledge of his or her HIV-positive status, without additional evidence, shall not be sufficient to prove specific intent."
Because of this specific-intent requirement, the law is narrowed in scope to only cover individuals who want to infect other people, and who are probably expressing that desire. If you slip up one time, it's unlikely that you will be prosecuted. However, the best way to stay clear of this law, and other legal liabilities, is to always disclose your status and/or practice safer sex.




A Comparatively Lenient Law
While California's willful exposure law may seem like just another way to make scapegoats out of people living with HIV, it is extremely lenient in the context of similar legislation that has been passed in other states.
The AIDS Policy Center in Washington, D.C., reports that 27 other states have established criminal penalties for knowingly transmitting or exposing another person to HIV. Most of these statutes have been passed as the result of political grandstanding by social conservatives and the religious right.

Unlike the California statute, under most of these state statutes individuals can be prosecuted if they know they are infected and engage in sexual intercourse without disclosure. Some of the laws are even more broad and vague. In Alabama, you can be prosecuted for "conducting oneself in a manner likely to transmit the disease," and in South Carolina, for "exposing another person to HIV without first informing."




Other Legal Liabilities
How the law will impact prosecutions under California's general criminal laws, such as attempted murder, is not clear.
It is likely that prosecutors will move toward restricting suits unless the elements of the willful exposure statute can be met. Prosecutions under the general law have been rare in California, and have usually accompanied charges of violent sex crimes.

However, some of these general criminal laws do not require specific intent. For these crimes, a conviction can rest on proving recklessness or criminal negligence. Because the potential still remains for prosecution under these general criminal laws, you should not risk relying on the specific intent requirement of the willful exposure statute to avoid liability. The best policy to protect yourself from any criminal liability is to disclose to your sexual partners and to use a condom.




Civil Cases Brought to Trial
Following these precautions will also protect you from civil liability. In addition to criminal prosecutions, a number of civil cases have been brought in which individuals sue sexual partners with HIV disease for monetary damages. These cases proceed under the tort theories of negligence, battery, fraud and intentional infliction of emotional distress.
The most famous of these cases occurred in California. Mark Christian, the sexual partner of Rock Hudson, sued Hudson's estate and received a jury award of $5.5 million. Christian claimed that, despite his repeated inquiries, Hudson and his private secretary denied that Hudson had HIV. Christian won this award even though he did not become infected. Like most civil cases, he claimed as damages the emotional stress caused by being exposed to the virus, not actual infection.

Other civil cases have not faired as well. These cases are frequently dismissed because the plaintiff cannot allege the necessary facts. Criminal statutes are often used by civil courts to set the standard for what type of conduct is considered negligent. California civil courts may dismiss negligence claims unless the infected person's conduct meets the requirements of the new willful exposure statue.

To sum up, if you have safer sex and disclose your status to your sexual partners, you will not violate California's willful exposure law, and will protect yourself from any form of criminal or civil liability.

Brad Sears is the Legal Check-Up attorney in the HIV/AIDS Legal Services Alliance. This article originally was published in the November 1998 edition of Positive Living.







--------------------
Life is a river.
Carpe diem.

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ScotCharles
Legend

Reged: 05/06/05
Posts: 924
Loc: Los Angeles
Re: HIV & Child Custody new
      #155768 - 06/02/05 03:35 PM

See ScotCharles post.

--------------------
Life is a river.
Carpe diem.

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Anonymous
Unregistered

Re: HIV & Child Custody new
      #155782 - 06/02/05 09:58 PM

There are a couple of reasons why she thinks I am risky. She has caught me a couple of times with my toothbrush with the kids and no separated even though she asked me too. I guess I forgot. I have had cuts that had scabs on them that she asked me to put bandaids on, and I didn't. She did not like me using a razor due to the bleeding from the nicks, so she bought me an electric razor which broke. I did not have enough money to replace it so I went back to shaving. She was upset and said I did not take my disease and the kids seriously and bought me a second one. She gets mad when I share straws for drinks and utensils for eating. She said she knows it can not probally transmit it, by why not be extra careful with our kids. She states these are the reasons she is concerned and that I don't take it seriously. Oh and once I stated to her, if my children fell and hit their head and were bleeding and needed me, I would help them and touch their head without putting on gloves. Am I wrong?

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Anonymous
Unregistered

Re: HIV & Child Custody new
      #155792 - 06/03/05 08:58 AM

There's no way in Hell you could infect your children in those scenarios. You both need to get educated on HIV transmission.

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debtex
Legend

Reged: 03/21/05
Posts: 846
Re: HIV & Child Custody new
      #155799 - 06/03/05 03:59 PM

You are NOT wrong. I have been positive since my son has been one year old. he is now 13. I have had cuts, healed over scabs (without band-aids) and shave my legs in the same shower where he took his baths!! these are never ways of transmission!! You children are in NO WAY at risk for you being aroung them, and caring for them as you normally would. the toothbrush thing, thats just ridiculous!!
She didn't want them "near" the kids toothbrush. Does she think that the hiv would float around your toothbrush and touch theirs.
I have shared food, utensils, straws, and toilets with my son without any fear of him catching my disease. The only thing I was sure to teach him (and this was just an extra precaution on my mind), was that if mommy cut herself and was bleeding, to please wait till I cleaned and covered it. (of course, something about fresh blood scares you). But a healed over scab...no fear...even if you were holding your childs hand!!! Your wife really needs to be more educated on this disease. She is not being fair to you, or to the children to make all of you live that way. And the worst part of all of it, is she is not teaching her children properly how hiv is transmitted at ALL!

Please keep in touch. My prayers are with you. You should call AIDS action in boston about seeking legal help. They have numerous services, and there is no way in todays world you would loose visitation of your children because you live with this disease.
Again....my son is 13, and now knows that the germ his mom has is called hiv....and even when the school teaches him something that he knows is wrong, he comes home and tells me. And he has NO FEAR about sharing anything with me.

Love and prayers to you,
Debbie

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Anonymous
Unregistered

Re: HIV & Child Custody new
      #155800 - 06/03/05 06:22 PM

I'm not sure suing using the HIPPA argument would fly if the wife is not a health care provider who is required by law to keep medical records confidential. If I, as just a joe-blow non-heath care worker citizen, find out that you are positive and spread the word around, HIPPA won't protect you, because HIPPA doesn't apply to me. If I'm lying, you may be able to sue me for slander, but if I'm telling the truth I think you pretty much have no remedy.

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Anonymous
Unregistered

Re: HIV & Child Custody new
      #155811 - 06/04/05 11:07 AM

Why wouldn't it fly? HIPAA covers employers, salespeople, and other such non-healthcare providers, so why wouldn't it cover an indivdual who is disclosing Protected Health Information?

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