Money, caregiving, and kinship: should paid caregivers be allowed to obtain de facto parental status?
Parenting is widely perceived to be the quintessential private, uncompensated and non-marketable activity. (1) Parenting is done in the home, on weekends, and during leisure time. The majority of parenting work is done by women, (2) and it is usually done by mothers. (3) It is understood to be performed out of a sense of beneficence; from a feeling of love and caring for one's offspring. (4) It is admittedly hard work, particularly caring for young children, but it is fulfilling work. (5) It is commonly perceived that the love for and emotional attachment with children are sufficient motivation; no other benefits are needed.
In fact, compensation for parenting is shunned. There is persistent and legitimate concern that it is in the best interests of children to be raised by those who act for altruistic as opposed to financial motives in order to ensure that their well-being is protected. Many fear that "economic incentives and [parenting] cannot coincide but are in fact oppositional." (6) Margaret Radin forcefully advocates the separation of the market and parenting because she fears that allowing a market in such personal and intimate activities as parenthood cheapens and monetizes personhood. (7) Concerns about mixing compensation and traditional parental rights are related to concerns about a market in children, which is arguably inimical to human dignity and human pricelessness. (8) In various contexts, the law clearly outlaws baby-selling in any form, including proscribing the purchase of parental rights and rejecting demands for payment from the state for parenting. (9)
However, in other contexts involving children and compensation the law is emerging in a much more nuanced manner. (10) Additionally, challenges to the traditional perspective that parenting work and compensation must never be combined are gaining momentum. (11) It is impractical and disingenuous to attempt to separate money from parenting entirely, and commentators argue convincingly for a more subtle and nuanced view of the relationship between money and parenthood. (12) This is true no matter how one defines parenting. If parenting is nurturing, taking care of children on a day to day basis, raising and counseling them--termed "functional parenting" (13)--paid care is increasingly substituted, at least partially, for gratuitous motherly or fatherly care. (14) The incidence of paid childcare has increased significantly with the increasing presence of women in the workplace. (15) If, on the other hand, parenting means having legal rights to children, then such rights are also bought and sold in the marketplace in the context of artificial insemination and egg donor markets, (16) as well through surrogate motherhood and, to a certain extent, private and even public adoptions. (17) A myriad of other scenarios exist where money and parenting do mix--for instance, alimony and child support based on caretaking activities, (18) foster parenting, and welfare payment distributions determined by the number of children in the home. Simply put, it costs money to raise children and people who raise children need money.
In this article, I will further challenge the reluctance to commingle parenting and compensation by arguing that paid caretakers should be able to obtain legal rights to custody and visitation of children in a manner comparable to unpaid psychological parents. (19) Those advocating recognition of a more nuanced relationship between parenting and compensation have advocated valuing such intimacies in market terms or limited marketization. (20) Here, I am discussing the reverse possibility: should the fact that intimate relations are based on market or compensated arrangements create an assumption that intimacies and attachments do not exist? I argue that the receipt of compensation for child care should not itself be sufficient to disqualify caretakers from potentially achieving de facto legal status (21) if the psychological bond is otherwise strong and high standards similar to those of the ALI's Principles of the Law of Family Dissolution ("ALI Principles") for achieving de facto parental status are met. (22)
In the last two decades, a trend has developed in state law and in scholarly commentary toward increasing openness to awarding parenting rights to third parties who have been functional caregivers to children, precipitating the adoption of de facto parenthood and parenthood by estoppel status in the ALI Principles. (23) Such status allows caregivers other than legal parents under state law and biological or adoptive parents (or, in some states, parents by presumption), to have standing to seek custody and/or visitation of children for whom they have cared for a significant period of time. Such standing to seek custodial rights is granted either to a person who has explicitly taken on the traditional role of "parent" with the consent of a legal parent (parenthood by estoppel) or as a caretaker acting like a parent through caretaking alone (de facto parenthood). (24) However, the ALI Principles, as well as state courts who have allowed for such third-party status, explicitly exclude compensated caregivers from attaining such status, prophylactically assuming that such caregivers do not act in the child's best interests. (25) Thus, foster mothers, child care providers, and surrogate mothers cannot obtain custodial rights to children irrespective of the existence of a strong psychological bond between paid caregivers and the children for whom they care.
I argue that the rigid approach of excluding paid caregivers from the possibility of obtaining de facto status sacrifices significant benefits to children and caretakers. Once the law recognizes the benefits of psychological parenthood, excluding those who receive compensation for the care they give denigrates the value of care given by paid caregivers, misjudges the strength of the psychological bond between paid caregivers and children, and discriminates against the poor and racial minorities. While legitimate concerns regarding allowing a third party to use the power of the state to infringe on the parent-child relationship, as well as more general commodification anxiety, must be addressed, a more nuanced approach is recommended. Just as feminists have argued that caretaking work needs to be compensated, compensated caretaking work needs to be legally recognized for the value it provides.
In Part II, in order to provide context for my discussion of the possibility of awarding legal rights to paid caregivers, I describe the legal doctrines that provide custody and visitation rights to parties other than legal parents and the increasing legal recognition of functional parenthood in custody disputes and visitation petitions. I also discuss the potential constitutional limits on extending third-party rights as stemming from the Supreme Court's opinion in Troxel v. Granville. (26) In Part III, I discuss the exclusion of paid caretakers in more detail. I identify these caretakers and how they have thus far been treated in the case law when attempting to assert custodial rights. Although the primary paid caretakers I will discuss are foster parents, I will also discuss other paid caretakers and surrogate mothers. While there are significant differences between these categories of paid caregivers which potentially affect whether they should be granted legal status, I argue that the fact of compensation alone should not disqualify any of these caretakers from potentially obtaining legal rights to children.
In Part IV, I review the reasons for allowing paid caregivers to obtain de facto parental status and the reasons for opposing their ability to gain such status. I argue that a more complex understanding of the anxiety surrounding mixing money and care is necessary to reap the benefits yet avoid the drawbacks of intermingling money and parenting. In Part V, I apply this nuanced view, arguing that foster parents, paid caretakers, and surrogate mothers should be able,--depending on the circumstances and after a best interests hearing, to obtain visitation or even custody rights to children.
THE CONTEXT: THE ADVENT OF THE FUNCTIONAL PARENT
In this section, I will discuss how the law has gradually evolved from granting custody and visitation rights exclusively to biological or adoptive parents to granting such rights to unpaid functional caregivers in recognition of their contributions, albeit unpredictably. I will also discuss how the attitudes of society have similarly evolved. I will then describe the codification of this change in the ALI Principles. Finally, I will describe the uncertain constitutional limits on visitation and custody right for parties other than legal parents that the Supreme Court has imposed based on family privacy. This progression provides the necessary context for evaluating the legitimacy of awarding caregivers other than legal parents, whether paid or unpaid, legal status with regard to the children under their care.
State Law Recognition of Third-Party Rights to Custody
Traditionally, state law grants to legal parents all legal rights and responsibilities to children. Under this traditional doctrine of parental exclusivity, it is extremely difficult for a third party to obtain custody or visitation absent a showing of the legal parents' unfitness or a showing that they relinquished or abandoned their parental rights. (27) This exclusivity applies regardless of the potential benefit to children in having rights given to third parties. (28)
However, the law is slowly becoming less rigid, recognizing the contributions of third-party functional caregivers as worthy of legal protection in limited scenarios. The various rights traditionally held only by legal parents that third parties seek based on functional caregiver status are custody, visitation, guardianship, and adoption. While discussing all of these forms of parental...
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