University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 1998 Legal Images of Motherhood: Conflicting Definitions From Welfare "Reform," Family and Criminal Law Jane C. Murphy University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Family Law Commons, and the Juvenile Law Commons Recommended Citation Legal Images of Motherhood: Conflicting Definitions From Welfare "Reform," Family and Criminal Law, 83 Cornell L. Rev. 688 (1998) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. LEGAL IMAGES OF MOTHERHOOD: CONFLICTING DEFINITIONS FROM WELFARE "REFORM," FAMILY, AND CRIMINAL LAW Jane C. Murphyt INTRODUCTION. .. 689 I. THE "GoOD MOTHER" IN LAw: MOTHERS AS CARETAKERS. .. 692 A. Child Custody . .. .. 693 B. Child Protection Proceedings ..................., . .. 702 1. Civil Proceedings . .. 702 2. Criminal Proceedings............................. 712 a. Regulating Pregnancy. .. 713 b. Criminal Prosecution of Mothers for Child Abuse or Neglect. .. 717 c. Criminal Prosecution of Mothers for Failure to Protect. .. 719 II. THE PRESUMPTION OF EQUAI..ITY: MOTHERS AND FINANCIAL SUPPORT. .. 723 A. Child Support Laws. .. 724 B. Welfare............................................. 732 III. THE BA'ITERED WOMAN AS "BAD MOTHER" ............... 741 A. The Impact of Domestic Violence on Maternal Responsibilities..................................... 741 B. The Legal System's Response When Child and Mother Abuse Intersect: Case Studies.............. 745 1. Case Study Number 1: Mothers in Juvenile Court. .. 745 2. Case Study Number 2: Mothers as Criminal Defendants....................................... 753 t Associate Professor & Director of the Family Law Clinic, University of Baltimore School of Law, BA 1975, Boston College;J.D. 1978, New York University School of Law. 1 wish to thank Karen Czapanskiy, Cheri Wyron Levin, Barbara Babb, and Dana Shoenberg for their comments on this Article. 1 also thank Margaret May for her expert clerical assistance throughout the many stages of this project and Robin Klein, Susan Rod­ gers, Danielle Dixon, and Yolanda Sonnier for their research assistance. 1 am particularly grateful to Debra Grant for her creative and thorough research in the final stages of this Article, and to Kathleen Kennedy Townsend,J.Joseph Curran,Jr., Linda Koban, andJulie Drake, public officials and advocates whose interest and support of this project were invalu­ able. My title is inspired by the work of Martha Mahoney and Naomi Cahn who have made such significant contributions to the scholarship on battered women and motherhood. Finally, this Article is dedicated to my mother, Ellen Murphy, who, more than any laws, cases, or policies, has shaped my image of motherhood. 688 1998] LEGAL IMAGES OF MOTHERHOOD 689 3. Case Study Number 3: Mothers as Defendant in Divorce and Custody Proceedings. .. 756 CONCLUSION •••• • • • • • • • • • • • • • • . • • . • • • . • • • • • • • • • • • • • • • • • • • • • • • •• 761 lNrRODUCTION Until recently, legal scholars have written very little about the sub­ ject of motherhood.! There is even confusion about how to define '~mother" under the law.2 As one commentator stated: "[W]ho is a mother no longer has a simple answer, now that genetic contribution, gestation, and stroller pushing may each be provided by a different woman."3 Despite this inattention and confusion, an analysis of the areas of family, welfare, and criminal law clearly shows whom the law rewards as a good mother.4 Judicial and legislative pronouncements about when mothers may have custody of their children, when mothers mayor must work, and with whom mothers may live are all 1 However, other disciplines, such as history, psychology, theology, and philosophy, have extensively explored motherhood for some time. See, e.g., NANCY CHODOROW, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER 9 (1978) (arguing that "women's mothering is a central and defining feature of the social organiza­ tion of gender and is implicated in the construction and reproduction of male dominance itself'); LINDA GoRDON, HEROES OF THEIR OWN LIVES: THE POLITICS AND HISTORY OF FAMILY VIOLENCE, BOSTON 1880-1960 (1988) [hereinafter GoRDON, HEROES OF THEIR OWN LIVES] (reviewing historical development of family violence); LINDA GoRDON, PITIED BUT NOT EN­ TITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935 (1994) [hereinafter GoRDON, PITIED BUT NOT ENTITLED]; ADRIENNE RICH, OF WOMAN BORN: MOTHERHOOD AS EXPERIENCE AND INSTITUTION (1976) (distinguishing the social institution of motherhood from the individual experience of motherhood); RUDOLF SCHAFFER, MOTHERING (1977) (exploring the psychological aspects of motherhood); JANE SWIGART, THE MYTH OF THE BAD MOTHER: THE EMOTIONAL REALiTIES OF MOTHERING (1991) (exploring the "psychology of nurturing"); Nancy J. Chodorow & Susan Contratto, The Fantasy of the Perfect Mother, in FEMINISM AND PSYCHOANALYriC THEORY 79 (1989)_ 2 One judge in a recent surrogacy opinion stated, "[W] e really have no definition of 'mother' in our law. .• [M] other was presumed to be so basic that it was without need of definition." Smith v.Jones, No. 85-532014, slip op. at 9 (Mich. Gir. Ct. Mar. 14, 1986)_ 3 Carol Sanger, M is for the Many Things, 1 S. CAL. REv. L. & WOMEN'S STUD. 15, 18 (1992). 4 Feminist legal scholars have begun to explore the subject of motherhood. These writings have generally concluded that the law stereotypes mothers and fails to take into account the different experiences of mothers. These scholars contend that the law tends to evaluate mothers according to an idealized standard requiring mothers to be all-sacrific­ ing, chaste, and selfless nurturers regardless of their circumstances. See, e.g., MARTHA ~ BERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TwENTIETH CENTURY TRAGEDIES (1995) [hereinafter FiNEMAN, THE NEUTERED MOTHER]; MARTHA ~ BERTSON FINEMAN, Preface to MOTHERS IN LAw: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD, at ix, x (Martha Albertson Fineman & Isabel Karpin eds., 1995) [herein­ after MOTHERS IN LAw]; Dorothy E. Roberts, Motherhood and Crime, 79 IOWA L. REv. 95, 97- 98 (1993) [hereinafter Roberts, Motherhood and Crime]; Dorothy E. Roberts, Racism and Patriarchy in the Meaning ofMotherhood, 1 AM. U.J. GENDER & L. 1, 10-16 (1993) [hereinafter Roberts, Racism]; Dorothy E. Roberts, Unshackling Black Motherhood, 95 MICH. L. REv_ 938, 948-51 (1997) [hereinafter Roberts, Black Motherhood]; Carol Sanger, Separating from Chil­ dren, 96 COLUM. L. REv. 375, 399-409 (1996); A Symposium on Reconstructing Motherhood, 1 S. CAL. REv. L. & WOMEN'S STUD. 9 (1992)_ 690 CORNElL LAW REVIEW [Vol. 83:688 entrenched in a legal construct of ideal motherhood. The stereotype these laws embody is that of a self-sacrificing, nurturing, married, and stay-at-home mother. Adherence to this stereotype, however, assumes that mothers are equal and autonomous wage earners when the law considers mothers' economic rights and responsibilities. The primary way that the state imposes its conflicting definitions of motherhood is through its criteria for determining whether a woman has the right to raise her children and whether she has access to the means for supporting those children. An examination of the laws governing child placement, child support, and welfare reveals a series of double binds and conflicting obligations for mothers, making continued custody of children an uncertainty whenever mothers devi­ ate from the "ideal." The way mothers behave has changed dramatically in the last forty years.5 Much of family law is premised on the ideal construction of the family that presumes an arrangement that is almost nonexistent today-a mother at home with minor children and a father working outside the home.6 The law sets standards for child placement deci­ sions, however, based on a view of a mother's proper role that has changed little since the 1950s. Mothers are expected to be married, to stay at home, to be available to their children around the clock, and preferably to be both monogamous and heterosexual. The adherence to these stereotypes, however, yields to an as­ sumption of equality when the law considers mothers' economic rights and responsibilities. Contrary to women's actual experiences, the law assumes mothers enjoy both an autonomy that permits them to make choices without regard to their children's needs and an equality of economic opportunity between mothers and fathers. Two points guide the discussion of how the law defines "mother­ hood." First, any discussion of the legal regulation of motherhood must acknowledge that "good" and "bad" mothers do exist. 7 This Arti- cle's exploration of the legal definitions of those categories does not aim to eliminate them entirely, but rather, to clarify further the mean­ ing of these definitions in the law, and to test their adequacy in 5 The primary areas of change have been in patterns of work and marriage. Many more women with young children now work outside the home than ever before, and fe­ male-headed, single parent households are at an all time high. See infra note 28. 6 Since 1987,