Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations

Abstract

The American law of parent and child is conventionally understood to be extremely deferential to parental prerogatives and highly reluctant to intervene. But this picture, endorsed by legal authorities and popular commentators from the nineteenth century to the present day, reflects only one tradition in the law's regulation of parenthood. Since the last quarter of the nineteenth century, there has also been massive legal intervention into the parental relation. This second legal tradition, moreover, has been guided by norms wholly different from those conventionally associated with family law, often evincing a radical suspicion of parental autonomy and an eager willingness to reshape family relations. This Article explores how the divide in the laws and norms governing the parental relation emerged and maintained itself, tracing an important chapter in the history of the law's regulation of family life. It then uses this history to examine why the divide has survived the modern constitutional era.