Past and Current Constructions of Family Law
Family law is a state construction, subject to change and reinvention. The states determine who may constitute families recognized by the state, and the states delineate the responsibilities and privileges of those family members. Indeed, the content of family law has changed dramatically over time in the United States. Initially called “domestic relations,” family law at the time of the nation’s founding encompassed all of a household’s internal relationships, including master-servant, master-slave, husband-wife, and parent-child. The boundaries of family law have changed in multiple ways since that time, but spousal and parent-child relationships have consistently remained within the construction of family law.

The state initially recognized these spousal and parent-child relationships as a means to privatize the dependency of both women and children. Men, not the state, assumed responsibility for this dependency and generally received the full range of citizenship rights in return. With the passage of various family law reforms and, ultimately, the Nineteenth Amendment, wives were no longer officially dependent on their husbands. However, the states still recognized families as a means to privatize dependency, particularly the dependency of children on their parents and the financial and emotional dependencies thought to arise when individuals share a household. Because the law no longer mandated much of that dependency, some family law scholars began to describe it as domesticity or care. Justifications for legal recognition of the family soon came to hinge on the provision of nurturance, emotional support, and other life necessities within the family grouping. However, as set forth below, the provision of that care was still deeply gendered, prompting calls for additional reform designed to achieve gender equality within the family and Desi friends.

Therefore, individuals not involved in a dependency relationship or not sharing a home, or both, remain outside of even alternative definitions of the family. This construction of family assumes that people living on their own care for no one but themselves. In addition, so-called single parents are assumed to care only for their children, and these parents are assumed to perform that task alone. Other forms of care provided outside of the home are largely ignored.

When viewed in this manner, family law has not changed as dramatically from the days of “domestic relations” as is generally assumed. The home is still the organizing structure for family. Moreover, the law still addresses hierarchies within the home, although those hierarchies are no longer always seen as natural or inevitable but instead are acknowledged as the product of shifting needs throughout the life course. Both existing and proposed constructions of the legal family address how members of households meet those needs by either giving or receiving care, thereby creating and sustaining interdependent ways of life. Individuals outside of the household remain invisible, even if they too provide various forms of care and support to those within.

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