The Clinical Guide to Supportive and Palliative Care for HIV/AIDS

A Clinical Guide to Supportive and Palliative Care for HIV/AIDS • Chapter 18: Legal and Financial Issues2. Permanent Guardianship of Minor ChildrenPermanent guardianship offers a parent with HIV the option of permanently placing her minorchild in the care of another person. This may be a wise option for a parent who has become tooincapacitated to provide regular care for her child, and who does not anticipate recovering to apoint where she will be able to resume traditional parental duties. If the parent is so ill that shecan no longer care for her children, or anticipates that she will soon be unable to care for thempermanently, one advantage of initiating the permanent guardianship proceeding while she isstill living is that she can participate in the court proceedings and let the judge know her reasonsfor selecting a particular person as the guardian. This level of involvement in the decisionmakingprocess is important in that it allows the parent living with HIV to maintain a sense of controlover the future of her children. Once the permanent guardianship is established, the parent nolonger has to worry about who will care for her child if she dies.The process for appointing a permanent guardian is similar to the standby guardianship processin that they both require the filing of a petition with supporting documentation, a hearing beforea judge, and notice to, or assent of, the other living parent where applicable. A court willinvestigate the proposed guardian’s background, including criminal history and any involvementwith child welfare authorities. Some judges might scrutinize the fitness of the proposed guardianmore carefully than they would in a standby guardianship proceeding because of the permanentnature of the appointment. Once the permanent guardianship is approved, the guardian’sauthority to make decisions and care for the child is effective immediately and lasts until thechild turns 18 years old.Children above a certain age must also consent to the appointment, and States vary as to whetherolder children must appear in court and consent orally or whether a notarized signature willsuffice. States also vary as to the age at which the minor’s consent is required. Fourteen years ofage and above is typical, but some States require a minor’s consent beginning at age 12.3. Transfers of Custody/Modification of Custody OrdersModifying existing custody orders to transfer physical or legal custody to another parent is aplanning tool available only to those parents whose children’s custodial status was subject to aprior determination by a court. When a married couple with children divorces, the court thatapproves the divorce agreement – or that hears the case in the event of a contested divorce –also enters a judgment, called an “order,” regarding custody of the children. The custodyarrangement is then fixed by law and can only be changed by another subsequent court order.There are many variations of custody arrangements. One of the more common arrangements isfor two parents to have “joint” or “shared” legal custody with physical custody resting with oneparent. This means that both parents have equal parental status, rights, and responsibilities inthe eyes of the law, but the children live with the parent who has physical custody, also referredto as the “custodial parent.” In such an arrangement, the parent without physical custody, orthe “noncustodial parent” will typically have visitation on a regular basis. In cases where thechildren maintain a good relationship with the noncustodial parent, and where the noncustodialparent has expressed a willingness to care for the children in his home should it become necessary,a custodial parent living with AIDS who becomes unable to care for her children might seek tomodify the custody order to transfer physical custody to the other parent. Most courts willrequire that a motion to modify the prior custody order contain an explanation for the proposed384U.S. Department of Health and Human Services • Health Resources and Services Administration • HIV/AIDS Bureau