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 as substitutes 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. This category fits well with the legal regime of parental exclusivity, which promotes a nuclear family model, and with cultural norms that encourage parents to utilize intensive, developmentfocused childrearing methods. This Article argues that this new approach rests on flawed and potentially harmful assumptions about parenting and caretaking. Detaching 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. 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. This Article urges readers to rethink conventional understandings of parenting and caretaking and to recognize the price that the current legal approach exacts—and who pays it. † Graduate Fellow, Institute for Social and Economic Research and Policy, Columbia University. Columbia Law School, J.S.D. expected 2009; Columbia Law School, LL.M. 2005; Tel Aviv University School of History, M.A. 2004; Tel Aviv University Law School, LL.B. 1999. I have benefited enormously from the comments on previous drafts of this Article by Anthony Colangelo, Hanoch Dagan, Ariela Dubler, Cynthia Estlund, Jeff Fagan, Katherine Franke, Marie-Amelie George, Haider Hamoudi, Alice Kessler-Harris, Bill McAllister, Faina Milman, Elizabeth Scott, and Dani Lainer-Vos. I am immensely grateful to Carol Sanger, who time and again helped me work through the hardest parts of the argument and never ceased to be a source of insight and support. I am also indebted to Gideon Benari, Lisa Ford, and Sagi Schaefer for their tremendous editorial work and substantive comments. An earlier version of this Article was presented at the Columbia Law School J.S.D. Workshop, Columbia Law School Associates-in-Law Workshop, and ISERP Graduate Fellows Workshop. I thank the participants for their insights and engagement with my argument. SCHAEFER 1.29.08 1/29/2008 12:27:29 PM 306 Yale Journal of Law and Feminism [Vol. 19:305 INTRODUCTION 307 I. THE “NANNY CASES” 310 A. Rewarding Parents for Employing In-Home Caretakers 310 B. Ordering Parents To Employ In-Home Caretakers 313 C. Conclusion 317 II. EXCLUSIVE FAMILY AND CHILD CARE 318 A. Exclusive Family Doctrine 319 B. Paid In-Home Caretakers and the Exclusive Family 322 C. In-Home Caretaking as the Foil to Other Types of Child Care Arrangements 328 1. Day Care 329 2. Kin Care 331 D. Conclusion 335 III. IDEAL AND PRACTICE IN IN-HOME CARETAKING 336 A. Childrearing Ideology: From Intensive Mothering to Concerted Cultivation 336 B. Paid In-Home Caretaking Meets Concerted Cultivation 340 C. Conclusion 347 CONCLUSION 349 SCHAEFER 1.29.08 1/29/2008 12:27:29 PM 2008] Disposable Mothers 307