This New York court opinion held that HIV-positive status alone is not grounds for a change in custody. Petitioner father sought a modification of an original custody order that had granted the mother full rights. The father's motivation for applying for this change was the mother's positive test for HIV.
The court stated in its opinion that modification of custody could be warranted only if the presence of the HIV-positive parent posed a direct danger to the child's physical or psychological well-being or if in the near future the infection would "significantly impair" the mother's ability to care for the child. During the custody proceedings, a medical expert testified that no evidence exists that HIV can be transmitted through daily household contact, thus the child was in no physical danger. Additionally, the medical expert testified as to the mother's health, and explained that an individual who is HIV-positive can still be quite healthy. Because the mother established that she could still maintain primary care for her child at a high level of performance, the court ruled that there was no material change in circumstances, and the custody order should not be changed.