Money, Caregiving and Kinship: Should Paid Caregivers Be Allowed to Obtain De Facto Parental Status?
University of Dayton - School of Law; Shaarei Mishpat Academic Center
March 24, 2009
Missouri Law Review, Vol. 74, No. 1, 2009
The law of custody and visitation is expanding to include the possibility of non-biological and non-adoptive parents' legal access to children. The concept of the psychological parent or functional caretaker is becoming increasingly prevalent and influential in state law. Moreover, the ALI Principles of Family Dissolution include two categories of psychological parents - parents by estoppel and de facto parents - in its proposed guidelines for who can petition for custody and visitation rights to children. Yet, both state law and the ALI Principles exclude caretakers who receive compensation - including foster parents, paid child care providers and surrogate mothers - from the categories of psychological parents to whom courts may grant such rights. In this article, I argue that the receipt of compensation for child care should not automatically disqualify caretakers from potentially achieving de facto legal status if the psychological bond is otherwise strong and the other requisites are met. In fact, I argue that such a rigid approach sacrifices significant benefits to children and caretakers. 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 anxiety about mixing money and the personal relationship of care, must be addressed, I recommend a more nuanced approach to addressing these concerns. This approach takes into account both the paid nature of the relationship as well as the strength of the psychological bond involved. 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.
Number of Pages in PDF File: 76
Keywords: Children, Caregivers, Commodification, Visitation
Date posted: March 25, 2009 ; Last revised: April 13, 2010