In contemporary American culture the traditional nuclear family, forged in the late eighteenth and early nineteenth centuries, has been eroding, but a deep nostalgia for the enduring, solidary bonds that seem once to have connected spouses to each other, and children to their parents, persists. In the service of that nostalgia, society clings with particular force to images of loving, vulnerable children, ideally separated from the harsh reality of adult life by virtue of the innocence of childhood. However, as the familial context within which society is thought once to have actualized those images disappears, and society and the law face the plight of actual children, the traditional images seem less and less compelling. Alternative images are proposed, but are approved with ambivalence(1) because they contrast with familiar assumptions and social expectations about children and childhood. Traditional images are sometimes manipulated, in the hope that, so reconstructed, familiar understandings of children and childhood can be preserved, and children's best interests can be safeguarded. As often as not the result is confusion and contradiction.
The law, reflecting the larger society, long presumed the autonomy of the family unit, but not of its interconnected members, and certainly not of women and children within families. By the 1960s, however, the law, responding to astonishing shifts in the scope and meaning of family, began to recognize adult family members as autonomous individuals vis-a-vis one another, and to grant them wide freedom to design their own relationships, from beginning to end.(2) Within a decade, the legal structures that had sustained and directed the vision of family constructed during the preceding century and a half were being dismantled. Regrets were expressed but were widely balanced by appreciation for startling new freedoms. With regard to children, especially children within families, the law, again reflecting the society, has moved more slowly and with more confusion in remodeling established understandings. As a result, a core contradiction defines much of contemporary family law. Children -- and, even more, childhood -- continue to be understood in traditional terms, but the legal and familial structures within which those terms once made sense have largely disappeared.
Traditional understandings of childhood, constructed during the Enlightenment, and firmly institutionalized in the early years of the Industrial Revolution, identified childhood as a stage of innocent purity and largely untrammeled enjoyment completely at odds with the dictates of the marketplace.(3) Children, because vulnerable both to the demands of the world outside the domestic order and to their own immaturity, were to be treasured and protected within loving, nurturing family settings.(4) Carl Degler, who described the differentiation of children from adults as the most significant shift in the development of the nineteenth-century family, explained:
[C]hildhood itself was perceived as it is today, as a period of
life not only worth recognizing and cherishing but extending.
Moreover, simply because children were being seen for the
first time as special, the family's reason for being, its
justification as it were, was increasingly related to the proper
rearing of children.(5)
That view of children was clearly reflected in the law by the early decades of the nineteenth century in the form of the "best-interest" standard, which became, and has remained, the dominant rule for adjudicating family law cases involving questions of custody and visitation.(6)
Thus, for almost two centuries society and the law depended on a uniform rhetoric about the sacred prerogatives of childhood, and about the centrality of children to understandings of family.(7) Traditionalists and modernists alike have joined, and in large part continue to join, in that rhetoric, which considers safeguarding children and preserving the innocence of childhood to be feasible and morally privileged tasks.(8)
However, besides these broad agreements about the moral value of childhood, and beneath the rather consistent rhetoric that considers childhood distinct from adulthood, an increasingly insistent and conflicting reality has been emerging. The law is more ready than it was fifty years ago to define children in various contexts and for various purposes, as autonomous individuals.(9) Moreover, and potentially more important, courts, asked to determine the boundaries or details of children's domestic lives, and dealing with actual children and their parents, are more and more frequently unable to rely on traditional assumptions about the character of domestic life, and about the scope and value of parental authority.(10)
These changes reflect, and in turn, encourage a series of clearly developing, though still incipient, shifts in the character of childhood in contemporary society. Although society clings to traditional images of childhood, the everyday lives of actual children are changing. As children dress and entertain themselves, as they play and compete, the differences between their lives and the lives of their adult counterparts become increasingly indistinguishable. Thus, as Neil Postman argued, an understanding of childhood constructed during the fifteenth century, and elaborated during the past two centuries, an understanding that alone seemed for a long time to have survived the ideological(11) and demographic transformation of American family life in the second half of the twentieth century, has begun to fade.(12)
This Article examines, in three parts, the transformation of childhood, and the law's complicated, rarely satisfying, often contradictory responses. In Part I, the Article describes a set of fundamental ideological shifts, during the past several decades, in understandings of the family in American society.(13) In Part II, the Article outlines three distinct models through which, since the start of the twentieth century, the law has understood children and the parent-child relationship.(14) The first model (the Traditional Model), though largely replaced by a second (the Transforming Traditional Model), continues to be invoked, primarily to justify the second.(15) Though clearly generated from the first, the second model connects as well to a third, very different model for understanding children and their relationships to their parents.(16) This third model (the Individualist Model), more often applied outside the domestic context than within, reflects modernity's suggestion that children should be assimilated to an egalitarian view of interaction that prizes autonomy, and that denies any fundamental distinction between childhood and adulthood.(17) In Part III, the Article focuses on the many contradictions generated by the second model as it attempts to mediate between the demands of modernity and of tradition.(18) This analysis focuses upon a set of decisions rendered by the United States Supreme Court beginning in 1976 that concern the abortion right of pregnant minors.(19) In addition, Part III delimits two general legal responses to the dilemma presented by society's continuing concern to preserve venerable images of childhood, and its increasing inability to actualize those images within the social world of contemporary families.(20)
The Transformation of Family and the Law's Response
The family of the nineteenth and early twentieth centuries, now recognized as the model of traditional family life and of old-fashioned family values, was itself unlike the family of the preceding century.(21) The shifts that transformed the colonial family into its post-Revolutionary counterpart were demographic as well as ideological.(22) During the colonial period, the American family, fully integrated into the surrounding community -- in John Demos's phrase, "continuous" with that community -- was an economically productive unit.(23) To the colonists, the family appeared as one, only weakly differentiated, part of an interconnected social universe.(24) Colonial families, reflecting the larger society, were hierarchical and patriarchal.(25) Within these families, husband and wife typically co-existed with an assortment of children and workers that included sons, daughters, other relatives, apprentices, and perhaps journeymen.(26)
After the colonial period, families declined in size.(27) Intergenerational influences waned.(28) Families, previously essential as units of economic production that joined parents, children, various relatives and apprentices together within working households, lost their productive capacity to become, instead, units of consumption.(29) At about the same time, paternal authority weakened while new images of nurturing mothers, inexorably bonded to their treasured infants, began to compete with older, patriarchal images of parentage.(30) Society became newly self-conscious about family,(31) and family members became self-conscious about, and began to experiment with, a variety of new options for relating to each other.(32)
As Among Adults
These last changes suggest the significance of essential shifts in the ideology of family that began to appear during the post-colonial period. These shifts, generated through a complicated set of social responses to the pressures of the Industrial Revolution and the values of the Enlightenment, led, initially, to a redefinition of family in express, even outspoken, opposition to forms of interaction associated with the nineteenth-century marketplace.(33) By the middle of the nineteenth century, traits associated with the ideal bourgeois family had come to contrast, almost point for point, with traits connected to the world of work and money.(34)
The marketplace, envisioned as a domain of transient, goal-oriented preferences selected by autonomous individuals, unconnected except insofar as they chose connection, prized liberty...