Reprieve For Dad With HIV

Appeals court found Maryland judge jumped the gun in custody case

An HIV-positive father succeeded in winning a new opportunity to seek custody of his three children on November 7 when the Maryland Court of Special Appeals, reversing a decision by the Prince George’s County Circuit Court, ruled that the trial court had improperly awarded custody to the children’s maternal grandmother over the father’s protest.

The parties were identified in the opinion by Judge Mary Ellen Barbera by their initials, to preserve confidentiality.

B.G., the father, and F.G., the mother, divorced in 2000 and had joint custody of their three children, all born during the 1990s, alternating weeks in which they spent with them. Both of them worked, so F.G.’s mother provided day care for the children before and after school, the divorced couple paying her $75 a week for the assistance.

Between 2000 and 2003, B.G. experienced a series of HIV-related illnesses, during some of which he did not care for the children. Eventually, his ex-wife petitioned for sole custody, and in February 2004 he agreed to sign such an order, but then relented after the hearing when the agreement was explained to him. He then retained a lawyer.

Just days, later, F.G., while caring for the children, was murdered by her brother’s estranged wife. The sheriff put the children in the care of F.G.’s mother, who then filed an action seeking custody. B.G. at that time was resident in an assisted living facility, but by April 2004 had leased a two-bedroom apartment in anticipation of having his children live with him. He was also prepared to enter a Social Security Administration return-to-work program.

Legal parents are typically entitled to custody of their children unless found unfit by a court. Only if that parent were found unfit would a court decide whether it is in the child’s interest to have a non-parent assume custody, unless there are “exceptional circumstances.” In this case, the trial judge found such circumstances—the children had a strong relationship with their grandmother from her daily care of them; they suffered the trauma of their mother’s murder; and, due to their father’s temporary incapacity, they had been with their grandmother since the mother’s death.

The trial court did not find B.G. to be an unfit parent, noting that as of August 2004 his medical situation was under control. But the court decided that under the unusual circumstances of this case the grandmother, referred to in its ruling as the children’s “surrogate mother,” should have custody. In spite of her advanced age, her history of two heart attacks, and the fact that she is a heavy smoker, leaving the children with their grandmother would avoid a disruptive move to a new home, the court found.

The court of special appeals found that the trial court had misapplied the law, noting that the state’s highest court recently ruled that the only exceptional circumstances that would justify overriding custody for a fit parent would be a situation where it “would be significantly detrimental to [the children]” to leave them in the parent’s custody. The trial court had made no such finding.

The appeals court did not award custody to B.G. outright, but rather returned the case to the trial court to explicitly apply the appropriate test and determine whether exceptional circumstances, in the form of detriment to the children, exist in this case.