Rights and Realities

Melissa Murray’s thought-provoking article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers provides a compelling analysis of the limits of functional approaches to the family. Although these approaches have been among the most important concepts motivating family law reforms and scholarship over the past thirty years, Murray illustrates the many ways in which they have both overlooked the complexities of childrearing and positioned caregiving as the sole domain of parents and their functional equivalents. Murray then begins a process of deconstructing legal notions of caregiving in order to expose and challenge the choices made by states and scholars when they assign the rights and responsibilities of caregiving solely to parents, even broadly defined. Murray concludes by urging scholars and reformers to spend more time considering “the question of how families perform their caregiving work” in order to begin to address the gaps created by a family law regime that recognizes only parents and strangers in children’s lives.

Taking up Murray’s call for “others to join this important conversation,” I enthusiastically support Murray’s project. Her article is outstanding, and I hope it will spur a fundamental shift in family law scholarship. Indeed, despite her modesty, Murray has proposed several alternatives that could radically alter the law’s current view of the parent-child relationship and of family relationships in general. I support these proposals to the extent that they force reformers and scholars to confront who benefits and who is harmed by legal conceptions of the family, even ones that have been expanded to reflect functional approaches to the family. I fear, however, that Murray’s analysis may be held back by an assumption about the appropriate relationship between rights and reality often embraced by family law scholars including, at times, by Murray herself.