Jen’s Half Cents: Family Courts, Child Welfare Services & Missed Opportunities for Intervention and Linkage to Care

One of the things I often relate in HIV advocacy and health care advocacy is the remarkable nature of the work we do. Yeah, we can absolutely get bogged down in the nuances of payment policies and necessary regulatory functions, but that’s not what motivates us. What truly drives us is a desire to improve the lives of those around us. And, as is the nature of any community built on shared trauma, HIV advocacy is unique in how it bonds us to one another. There’s little quite like it, regardless of the stakeholder. “On the ground”, we share about everything – our relationships, our hobbies, our sex lives, our triumphs and struggles, and, yes, our families. So nearly a decade into this work, it wasn’t a surprise–when I sought some emotional support—to find I could console with my colleagues as friends upon finding myself wrapped up in a complex custody battle. It brought me a great deal of comfort to receive advice on playing a supportive role to my partner as a parent and to share things like holiday photos and craft projects.

What did surprise me was coming to understand with great intimacy how family court and child welfare systems fail to consider their roles in family health, especially with regard to multi-generational poverty and behavioral risks. On February 6th, 2020, I was sitting in a court room awaiting a hearing while another parent’s case was being heard. The parent was seeking a change to a custody arrangement because the mother of his children had experienced a mental health break, was very likely to face homelessness, and he was making a concerted effort to both keep her involved in their children’s lives and to do so in a way that set her up for success. After his hearing concluded, he respectfully asked if the hearing officer or the court social worker could recommend resources for his ex to navigate public assistance and benefit applications. The response he received was, “we don’t know, we just don’t do that,” and I was shocked—truly and remarkably shocked—the court was unprepared for this request. It can’t possibly be an uncommon one. As he got up to leave, I politely stopped him and gave him information for a local federally qualified health center, Access Health Louisiana, which happens to be Ryan White funded.

This incident incited a shift in my perspective and self-education regarding issues of health, HIV-status, and family court and child welfare issues. A 2003 report from the ACLU’s AIDS Project found providers reporting clients having lost custody, denied visitation with their children, or having been barred from being foster or adoptive parents due to their sero-status. Indeed, parents have had their custody arrangements negatively impacted by merely associating with PLWH. In 2015, POZ Magazine covered the story of Donna Branum, a mother in Kansas who temporarily lost custody of her children because her fiancé’s HIV-status. While Branum was ultimately granted the right to return to a joint custody arrangement, the issue came to the attention of the court because Branum’s ex-husband petitioned the court, claiming Ms. Branum’s fiancé posed a “health risk” to the children. The ACLU’s 2003 report appropriately describes this type of stigma and lack of foundational, basic HIV-related education as discriminatory.

Thanks to a Supreme Court decision in 1998, HIV status, including “asymptomatic” cases, is covered under the protections offered by the Americans with Disability Act (ADA). While Bragdon v. Abbott centered on a dentist refusing to provide care for Sydney Abbott based upon her HIV status, the ruling contributed to the Department of Justice specifically mentioning HIV (twice) as a covered disability in its August 2015 guidance on the rights of parents and potential parents and technical assistance document regarding family courts and child welfare agencies:

Excerpt:

3. Who do Title II of the ADA and Section 504 protect in child welfare programs?

Answer:  Title II of the ADA and Section 504 protect qualified individuals with disabilities, which can include children, parents, legal guardians, relatives, other caretakers, foster and adoptive parents, and individuals seeking to become foster or adoptive parents, from discrimination by child welfare agencies and courts.  Title II also protects individuals or entities from being denied or excluded from child welfare services, programs or activities because of association with an individual with a disability. For example, Title II prohibits a child welfare agency from refusing to place a child with a prospective foster or adoptive parent because the parent has a friend or relative with HIV.

A 2013 UNAIDS report, entitled Judging the Epidemic, describes denying parents with HIV custody and visitation rights as “arbitrary, disproportionate and ineffective” with regard to any public health interest and urges courts to consider “actual” risk to a child’s welfare rather than “theoretical” risk. UNAIDS recognizes both children’s best interests and the rights of parents living with HIV as human rights issues needing careful address. However, even back in 1992, the book, AIDS Agenda: Emerging Civil Rights Issues, recognized family court matters provided an opportunity for “…the worst characteristics of litigants [to] emerge, with divorcing parents raising issues based on prejudice rather than on concerns of parenting ability – out of their own bias, anger, or an attempt to appeal to the anticipated biases of judges.” Both sources cite the American Bar Association’s position defending the rights of parents living with HIV and legal precedents in which parents living with HIV needed to employ medical experts to explain what’s commonly understood in medical circles: it is impossible to transmit HIV via casual, household contacts.

I’d be remiss not to mention a growing area of study currently gaining more attention: how—both psychological/emotional and physical—abusers use family court processes to exert control over their intended victims. At the intersection of family court processes being abused and parents living with HIV is the decade-old Centers for Disease Control report on domestic/intimate partner violence as “…both a risk factor for HIV, and a consequence of HIV.” This area deserves more attention than it gets; the least of which being a follow-up and more recently updated data than is provided in the CDC report.

In fact, despite attention to educating children and families and providing a holistic approach to outreach and linkage to care, the National HIV Strategy doesn’t mention family courts or child welfare agencies even once. With the HIV epidemic disproportionately impacting Black Women, family courts and child welfare agencies have a very unique opportunity as non-traditional partners to impact the public health of their communities. However, to even begin doing this, family court judges and child welfare agencies would need to begin addressing policies and procedures that essentially penalize poverty (often confusing poverty with negligence), rather than assisting families in need.

“We recognize the lives of PLWH are often impacted by people not working in HIV,” Louisiana’s implementation of their Ending the HIV Epidemic plan, Get Loud Louisiana, states. The plan is the first (to my knowledge) to include activities to engage family courts, social workers, and child welfare agencies to educate and change policies to better serve this public health interest.

Like all issues surrounding HIV, this is an intersectional one. Well-established is the role and social support of family for people living with HIV, and family court’s primary mission is the health and well-being of families; policies and procedures for resource-sharing are of paramount importance in meeting both of these sets of needs. To end the epidemic, to set families up for success, to address stigma, to help keep PLWH engaged in care, and so much more, we must begin to engage these critical stakeholders. We cannot afford to continue to miss this opportunity.