Melissa Murray’s article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers exposes a reality of contemporary family life that family law had relegated to the invisible, parents’ reliance on networks of caregiving, both paid and unpaid.1 In doing so, The Networked Family makes several significant contributions to family law scholarship.
First, the article advances family law’s ongoing project of becoming responsive to the ways that families live their lives, regardless of formal rules. Murray achieves this objective by challenging the traditional understanding of parenthood as an indivisible, comprehensive, and exclusive status2 and focusing instead on the way parents often rely on nonparents in caring for children. Second, The Networked Family seeks to confer value on caregiving by acknowledging its important role and calling for greater official recognition—wherever such recognition might lead. Accordingly, the article has implications for how family law might treat even caregiving provided directly by parents. Third, Murray’s analysis joins that of other family law scholars who question family law’s existing boundaries and thereby suggest that fertile ground for much-needed reforms might lie beyond where conventional conceptualizations of the field end.3 In looking past family law’s usual cast of characters and urging inclusion of nonparental caregivers, The Networked Family helps reveal the implicit value judgments and assumptions that account for the contemporary construction of family law itself. These are all welcome and meaningful insights.
Although Murray consequently provides several worthwhile points of departure, this brief response attempts to follow just one strand, the possible implications of her analysis for certain inequalities and hierarchies that long have characterized family law. Here, I consider what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores. To be sure, at points Murray acknowledges these variables—for example, in noting the promise of one theoretical approach that she considers, dismantling the notion of legal parenthood altogether.4 My response takes a closer look at caregiving and hierarchies of gender, color, and class.
Gender stands out as an especially salient factor in any analysis of caregiving because historically, and still today, caregiving has been located in the “private sphere” and has fallen primarily to women to perform.5 To the extent that marriage assigned to wives the responsibility of domestic services in exchange for the duty of support assigned to husbands, family law imposed this gendered division of labor, which received reinforcement from various restrictions on women’s employment outside the home. Although family law has now repudiated reliance on gender stereotypes, its declared commitment to equality remains limited because of the assumption that private discrimination and socially constructed choices remain off limits, beyond the law’s reach.6
Aspects of the Family and Medical Leave Act (“FMLA”),7 which The Networked Family considers, illustrate the problem. Although Congress found that “due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men,”8 Congress opted for a gender-neutral leave law in order to comport with the Equal Protection Clause and to promote equal employment opportunities for women and men.9 In interpreting the FMLA, the Supreme Court has emphasized the intended impact on the gendered practice of family caregiving. In Nevada Department of Human Resources v. Hibbs, the Court’s majority opinion observed that “[s]tereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men,” that “[t]hese mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver,” and that “the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving.”10 So construed, the FMLA emerges as a tool of social engineering that might help reframe the intrafamily choices that largely have eluded family law’s equalizing reforms, thereby prompting more men to shoulder the caregiving responsibilities traditionally borne by women.
Against this background, Murray’s exploration of a more expansive FMLA designed to guarantee leaves for a larger network of caregivers11 raises some intriguing questions. Certainly the realities of family life would justify expanded leave laws, well beyond the series of specified triggers listed in the FMLA. Murray’s focus, however, is on a longer list of potential leave-takers. To what extent would such reforms entrench existing gendered patterns of care work, rather than disrupting them—apparently one of the FMLA’s central objectives? Put less abstractly, if the FMLA covered nonparental caregivers, would more grandmothers, say, take leaves that Congress and the Court had hoped would be taken by fathers? Further, would more women employees well beyond their childbearing years experience the “family responsibilities discrimination”12 that their younger counterparts now often face? Would the perception of the ideal worker become even more solidly male? And might the effort to value caregiving through such legal recognition actually perpetuate its devaluation by providing more (perhaps too many?) opportunities for caregiving to remain exclusively women’s work?
Recently released census data show that grandparents serve as caregivers of nearly a third of the 11.3 million preschool children whose mothers work outside the home.13 Although these findings do not distinguish between grandmothers and grandfathers, there is good reason to suspect that grandmothers predominate—including the traditional “specialization” of women in carework; the longer average lifespan of women over men; and studies showing that, in families of divorced or never-married parents, mothers to a greater degree than fathers have historically maintained connections over time with their children (here, the adult child who is the parent of the grandchildren in question). Thus, grandparent care is more likely to be performed by grandmothers than by grandfathers. The demographics in turn suggest a need for at least attentiveness to the issue whether recognizing nonparental caregivers generally and expanding leave laws specifically, as Murray recommends, might maintain traditional gender roles within both the family and the workplace.
II. Color and Class
A close look at caregiving reveals hierarchies of race, ethnicity, and class in addition to and entwined with those of gender. For example, grandparents are more likely than fathers to care for the preschool children of employed African-American and Hispanic mothers, but an equal percentage of preschool children of employed non-Hispanic white mothers (29 percent) are cared for by grandparents and by fathers.14 Turning to children residing with grandparents, one finds data showing that most such children are children of color.15
Race, ethnicity, and class surface in a number of Murray’s references, including her allusion to caregiving practices in African-American and Latino communities16 and her discussion of both the Indian Child Welfare Act17 and the cooperative living arrangement in a famous case about food-stamp recipients.18 A still fuller picture emerges, however, from Dorothy Roberts’s 1997 article, Spiritual and Menial Housework.19
Roberts illuminates the racialized and class-based dichotomy within caregiving itself, a dichotomy that claims to distinguish the performances of mothers (largely supervisory and educative) from those of paid domestic workers (largely repetitive, tedious, physically demanding, and nasty). As Roberts points out, however, a particular task or function takes on its “spiritual” versus “menial” character and its place in the hierarchies of race and class according to the identity of woman performing it.20 Thus, the “quality time” that a mother with a professional career spends in the evening with her child is regarded as more special and valuable than the time during the day that the nanny spends performing similar interactions with the child. Further, when the nanny or domestic worker provides care for her own home or children, such efforts remain unacknowledged, if not invisible, obscuring the networks of care that she must engage in order to perform her day job. 21
In Roberts’s analysis, the mother in the scenario described above is presumably white and financially comfortable; the nanny or domestic worker whom she employs as a caregiver is presumably a poorer woman of color who relies on a neighbor, relative, or older child to enable her to leave her own children. Indeed, Roberts invokes the mistress and the “Mammy” from the era of American slavery to explain the ideology of the spiritual/menial dichotomy and to trace its roots.22 Although today many individuals defy such stereotypes, they cannot always escape them. For example, a recent news article recounts how African-American mothers with professional careers experience much more difficulty hiring nannies than their white counterparts.23
Would the legal recognition for caregiving that Murray seeks help dismantle the hierarchies that Roberts critiques, or would it exacerbate them? On the one hand, exposure from the increased attention that Murray invites might address the devaluation of all women’s work and disrupt the false dichotomy between spiritual and menial housework.24 On the other hand, we find a less promising answer when we look back to a time when family law did accord explicit legal recognition to nonparental caregiving. In an earlier construction, family law, once called the law of domestic relations, encompassed the master-servant relationship, including the master-slave relationship25—the same paradigm of inequality cited by Roberts.
Of course, Murray has no intention of reviving such bygone models, and I intimate nothing of the sort. Rather, family law’s past history, the gendered nature of caregiving, and the pervasive role of race and class all indicate that the recognition of the networked family will come with contextual complexities that require careful thought. It is reassuring to have this challenging project begin with a conversation led by a scholar of Murray’s creativity, insight, and ability to look beyond traditional doctrinal limits.
Family law often must confront a clash between its aspirations, on the one hand, and on-the-ground experiences and behavior patterns, on the other. The FMLA’s enactment of a stereotype-challenging gender-neutral leave provision, coupled with acknowledgement of the gendered nature of caregiving, offers just one illustration.26 The hierarchies that pervade caregiving today should not stifle the new aspirations that Murray’s analysis urges family law to embrace.
Preferred citation: Susan Frelich Appleton, The Networked—Yet Still Hierarchical—Family, 94 Va. L. Rev. In Brief 31 (2008), http://www.virginialawreview.org/inbrief/2008/09/01/appleton.pdf.
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