Family law
Family law involves a variety of issues that affect you and your family, including but not limited to divorce, guardianship and children's issues. Persons living with HIV should be aware of family planning options available to them and the role that HIV may play in these matters.
Can my HIV status be disclosed in a divorce action?
It depends. In Wisconsin, we have no-fault divorce, so neither spouse needs to provide a specific reason for the divorce other than that the spouse believes that the marriage is broken beyond repair. If the divorce involves no issues regarding the custody of children, your HIV status should not be disclosed. If there is a dispute over who should have custody of the children or where they should live, then a parent's health or HIV status may become one factor for the court to consider. The court will award custody and placement based upon what it believes is the best interests of the child.
Who is a guardian?
A guardian is a person appointed by a court to have care, custody and control, or management of the estate of a child or someone who is judged to be "incompetent."
If you become incompetent (or unable to care for yourself) due to illness, a guardian may be appointed by the court to care for you and/or your child. Or, if you have a loved-one or partner who needs a guardianship, you may go to court and nominate yourself or someone else to become the guardian.
The court makes the final decision on whom to appoint as guardian based on the best interests of the adult or child in need of the guardianship.
NOTE: The laws regarding guardianships may be changing in the future. The free legal services listed in the resources chapter can help you set up a guardianship.
How can I plan for the care and custody of my children when I die or become incompetent? Can I have my children placed with someone other than the surviving parent after my death?
If you want to plan for the care and custody of your child after your death, you may appoint a guardian or have your child adopted while you are alive and competent, or you may use a will to nominate a guardian.
going to court ahead of time. While you are alive, an attorney can help you to have someone adopt your child, if you are the only parent. Or, if you have a spouse, an attorney can help you appoint a guardian for your child if you and the child's other parent are willing to give up your parental rights.
You do not have the sole right to decide to place your children with someone other than the surviving parent. Both biological parents have equal rights to the custody and placement of a child. If you are in a custody dispute with your child's other parent and you become incompetent or pass away, the court must grant custody to the parent. The only exceptions are if the court finds that the parent is unfit or unable to care for the child, or if there are compelling reasons to deny custody to the parent. If you can come to an agreement with the other parent, the court will probably accept it.
Thus, if there are two parents, the best way to plan is to come to an agreement with the other parent about what is in the child's best interest, and ask the court to approve it. Using a will. You may also create a will or trust that explains who you want to be the guardian of your child. In this case, after your death the court will have a hearing and listen carefully to the wishes stated in your will. This method is notfoolproof, however. The court has the final say over who becomes the guardian based on the child's best interests. For more information, see the questions about wills in the Advance Planning chapter.
Who can nominate a guardian in court?
Anyone interested in the welfare of the person in need of the guardianship.
If I want my partner, who is not related to my child, to be my child's guardian, can my blood-relatives contest this?
No. Only the parents may contest a guardianship of a child. Remember that the final decision is up to the court.
If I want to be the guardian of my adult partner, can my partner's blood-relatives contest this?
Yes. The blood-relatives get to voice an opinion, but the final decision is up to the court.
Can my children be taken away because I am HIV-positive?
Possibly. HIV status, by itself, is not a reason for a court to interfere in your relationship with your child. However, the court may intervene in a parent-child relationship when a child's health and/or safety is at risk. An intervention usually is based on the recommendation of Child Protective Services. The court will determine whether a child is in need of protection or services.If you test positive for HIV, the test site will NOT automatically report your name to Child Protective Services.
If your HIV disease interferes with your ability to care for your children, this may be a factor that the court considers if it is deciding whether to take away your children. Or, if you are living with AIDS and expected to pass away very soon, this too could be a factor that impacts on a court's decision to take your child away. A court may consider anything that may impact on the best interests of the child.
Do I have to pay child support if I am disabled and on benefits?
When you have employment income, the government may deduct a portion for child support. According to Wisconsin case law, child support paymentsmay not be deducted from your Social Security Income (SSI) checks since SSI is not considered employment income. If you receive Social SecurityDisability Income (SSDI), however, the court may order that you pay a certain percentage of it for child support because SSDI is considered employment income.
Can I be a foster parent if am HIV-positive?
Yes, if your health does not prevent you from providing and caring for a child. If you want to provide foster care, you mustapply for a foster home license. You can be licensed for up to two years, at which time your license must be renewed. You must providehealth documentation for all household members as part of the licensing process. In order to be licensed to operate a foster home, you must bein good health. Good health is proven when you present a doctor's note stating that, based upon a medical examination performed in the past sixmonths, you do not have any illness or disability that will threaten the health of the foster child or interfere with your ability to providecare. If the licensing agency suspects that your physical health may pose a threat to the foster child, the agency may require a physical healthevaluation.
Does a foster parent have the right to know a foster child's HIV status?
Yes. You have access to your foster child's medical records. If you discover that your foster child has HIV, you are obligated to notify the foster agency.
Is my child entitled to social security benefits if I am disabled?
Your child will receive a Social Security dependent child benefit if you receive Social Security Disability Insurance (SSDI) orhave died, and all of the following are true: - your child is younger than 18 years or is in school;
- the child is a dependent;
- the child is unmarried;
- the child's parent or guardian applies for benefits for the child.
Last updated: January 1999 | 
