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, development focused 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.