The Public/Private Home

Abstract

Families today are more private and more public than traditional family law doctrine ever envisioned. This Article reveals how many elements of family life, which the law often assumes will occur in public—work, school, social life—have moved into the private sphere of the home. While at the same time, private family life has become increasingly visible and public through social media and continuous data collection within the home.

The balance of public and private life has shifted with profound implications for the field of family law, especially as it governs the parent-child relationship. Transformations in home life have the potential to ameliorate deep inequities inherent in modern family privacy law. But these transformations also risk exacerbating issues of family violence, oppressive state intervention, and inequality. Deploying vital critiques of family privacy arising from feminist theory, queer theory, and other critical traditions, this Article unpacks three foundational assumptions about the home: 1) What happens within the home is protected from outside view; 2) The home is separate from the market; and 3) Provision of public goods happens outside of the home. I argue that these assumptions present a doctrinal vision of family life that is starkly at odds with lived experience.

This Article proposes that parental rights should be untethered from the private home. Instead, law governing parent’s decisions about their children should be grounded in a core element of the parent-child relationship: parents’ duty to protect their children’s wellbeing.

Keywords: Family Law, Children and the Law, Constitutional Law, Parental Rights, Family Privacy