Disposable Mothers: Paid In-Home Caretaking and the Regulation of Parenthood

Abstract

Recent custody decisions in the United States have treated paid in-home caretakers - or nannies - as a substitute for parents who are either unavailable or unable to care for their children. They have created a legal category of nanny that detaches primary caretaking from the caretaker and attributes care provided by in-home caretakers to paying parents. In doing so, courts have imposed outdated norms of family life and childcare to the detriment of women and paid caretakers. This Article sounds a strong warning against this emergent - but thus far unnoticed - judicial approach. The current approach stems from an overwhelming consensus among judges and scholars that paid caretakers are inherently different from parents. The legal category nanny - that is someone who performs one-on-one intensive child care but by definition cannot be considered a parent - fits well with the legal regime and cultural norms that regulate contemporary parenthood. Legally, the parental exclusivity doctrine promotes a nuclear family model by mandating that children can only have one set of two parents at any given time. Culturally, parents are encouraged to utilize intensive, development-focused childrearing methods. The new approach appears compatible with both because it provides children with child-centered care and makes families which do not function as nuclear families appear as if they did. This Article argues that this new approach - and the consensus underpinning it - rest on flawed and potentially harmful assumptions about parenting and caretaking. The detachment of the care from the caretaker is artificial and contradicts the well established judicial and legislative view that performing hands-on caretaking tasks over time creates a parent-child bond. In addition, attributing paid caretakers' labor to hiring parents is unjust: it devalues care work, renders paid caretakers disposable, and places the majority of parents, who cannot afford in-home caretaking, in a disadvantageous position. Furthermore, it endangers the feminist effort to promote policies that allow women to better combine motherhood with workforce participation. The Article urges readers to rethink conventional understandings of parenting and caretaking and to recognize fully the price that the current legal approach exacts - and who pays it.