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March 23, 2013
Article on Legal Support for Intergenerational Caregiving
Jessica Dixon Weaver (Assistant Professor, SMU Dedman School of Law)?recently published her article entitled Grandma in the White House: Legal Support for Intergenerational Caregiving,?43 Seton Hall L. Rev. 1 (2013). ?The introduction to the article is available below:?
Marian Robinson exemplifies many characteristics of the classic modern day grandmother. She is a widow, former homemaker, retired worker, and provider of part-time care for two of her grandchildren.?Dubbed the "First Granny," she had been called a dream grandmother.?She retired in order to be chief caretaker of Malia and Sasha Obama during President Obama's first presidential campaign.?First Lady Michelle Obama refers to her as the rock of the family, saying that she provides stability for her granddaughters.??She is also known to be fiercely independent, active in her community, and a great cook.?After the historical election of the first African-American President, Mrs. Robinson reluctantly relocated to Washington, D.C. to live in the White House, after residing in the south side of Chicago for over forty years.?"They're dragging me with them, and I'm not that comfortable ... but I'm doing exactly what you do: You do what needs to be done ... ."?Her role in the family is pivotal - she is the support network for a two-career couple - shuttling the girls to and from school, to play dates and after school activities.
Mrs. Robinson says caring for her granddaughters is not like a job - "if anyone is going to care for them other than their parents, it had better be me," she says.?She also comments that her daughter Michelle is a strong woman, stating that "she is doing things that I couldn't do - that is what you want for your children - to live without the restrictions that you had."?The restrictions to which Mrs. Robinson refers reflect the limitations placed on both women and minorities during the 1960s when she was a young mother. Her comments echo those of another grandmother featured in the New York Times article entitled "Your Mother is Moving In? That's Great." Dr. Ellen Pulleyblank Coffey is a family therapist and author living in Berkeley, California who shares in the care work of her two-year-old grandson.?She calls herself a "feminist grandmother" because she and her husband use their flexible work schedule to care for her grandson a few days a week partly so that her daughter and her daughter's spouse can achieve work-life balance while pursuing their careers.?
Mrs. Robinson and Dr. Coffey are not alone. Many other grandparents labor to provide home stability and security for their families. In fact, they are a vital key to the family machine, enabling parents to stay professionally, financially, and emotionally afloat while guiding the next generation into the future. According to data from the U.S. Census Bureau, sixteen percent of the total population, or forty-nine million Americans, lived in multigenerational households in 2008.?This trend has grown significantly over the last thirty years; in 1980 this figure was just twelve percent of the population, or twenty-eight million.?The reintegration of elders into the nuclear family appears to be both a necessary and welcome change.
Several factors account for this change in the structure of these American families. The recession has accounted for the rapid increase over the last five years, but other factors - such as the crisis in home foreclosures, a rise in immigration, and the surge of aging baby boomers who are taking on financial, physical, and emotional responsibilities of the normative home - also explain this intergenerational dynamic.?Grandparent caregiving is necessary because of the demands on working parents and the difficulty of finding affordable child care.?The need increases for single parents, who often utilize the care and financial resources of grandparents as though they were the other parent.?
Scholars have identified the failure of the government to recognize and support the ways contemporary families are raising their children.?This Article delves deeper into analyzing how various laws work together to disadvantage today's modern grandparent. It also identifies ways in which other countries are attempting to adapt to this shift in family caretaking culture.
Few legal scholars have analyzed how laws outside the family law spectrum of custody and visitation rights affect the caretaking work of grandmothers. The three areas of law highlighted in this Article - employment, tax, and housing - are critical fields of law that have a tremendous effect on the lifestyle of elderly women. They are what this Article refers to as "living room laws" because they are the core economic laws that affect everyday activities of citizens.?Family law is transubstantive, meaning that the laws that apply to family structure and conduct extend beyond state family codes. There are many other areas of law that impact the family, including property, tax, criminal, employment, and tort laws. Since family law intersects with a host of other laws, it is important that we examine how a renaissance movement in family structure would impact the life circumstances and legal rights of grandparent caregivers. In many ways, this Article builds upon the scholarly discourse developed by other scholars regarding kinship care?and continues the conversation that family law scholar Melissa Murray began when she insightfully argued in favor of various new approaches to reframe the legal understanding of caregiving by a network of people, including parents, extended family members, friends, neighbors, and paid caregivers.?
Specifically, this Article examines how advocacy for grandparents should reach beyond traditional family laws in order to change the concept of care work within the family. This Article's focus is not only the manner of caregiving provided by grandparents, but the manner of living - the arrangement in which the family has chosen to reside. What are the legal implications of living under one roof, sharing financial resources to raise children, and sharing in the work of home? Reforms in all three aforementioned areas of law often focus on the burden of work-life balance on parents rearing children without considering the impact on other caretakers who share a primary role in the development of the next generation. This Article argues that expanding grandparents' rights entails revising the concept of what constitutes the realm of social welfare laws.
This Article argues that current employment, tax, and housing laws discourage elderly females from taking on the role of part-time or full-time caregiver for their grandchildren. Surely, there are many grandmothers who do not wish to "retribe"??their families through caretaking - they have reared their families and are enjoying their golden years comprised of free time to pursue individual interests. In fact, sixty-eight percent of Americans adults believe it is not a grandparent's responsibility to help with child care for grandchildren.?
Seventy-two percent of grandparents, however, take care of their grandchildren on a regular basis, and thirteen percent are primary caregivers for their grandchildren.?The discrepancy in these statistics illustrates several tenets. First, there is a large segment of American parents who either have no other better option for affordable, quality care for their children, or like the First Lady, prefer to have their children cared for by a grandparent.?Second, there is a large segment of American grandparents who are either willing or coerced to care for their grandchildren, typically without pay.?Third, though Marian Robinson and other grandparents may be not be thrilled by the prospect of retribing, something altruistic drives them to take on the responsibility of caregiving for a second generation.?
Whether amenable or coerced, a grandparent's choice to provide child care has a major socio-legal impact on their lives and on society. Grandparents who serve as full-time or part-time caregivers provide approximately $ 39.2 billion worth of unpaid service to their grandchildren.?Most of this work is borne by women, the burden carriers in most family units, who typically give of themselves sacrificially until an accident, disease, or old age catches up with them.?Many of these grandparent caregivers face financial, health, housing, education, and employment challenges that often foil their retirement plans.?With life expectancy increasing and sources of income decreasing, senior citizens are realizing that they need to continue working or re-enter the workforce in order to sustain themselves.?This Article further explores the question of how government should aid families in supporting its most dependent, vulnerable members. It also analyzes the underlying tensions in balancing the senior citizen's desire for autonomy and the government's responsibility to aid in the changing lifestyles of families. Each part of this Article underscores how culture, class, and gender impact the role of modern grandparenting.
This Article proceeds in six parts. Part II sets forth a brief history of the multigenerational family in America and the various types of caretaking arrangements between grandparents and the nuclear family. The Article also discusses the importance of intergenerational caregiving as a means of transmitting culture and values, as well as a means of providing stability and protection from child abuse and neglect.
Part III explores the impact of employment laws on the supporting generation of grandparents. This part analyzes how the different types of grandparent caregiving affect the key sources of retirement income, social security and pension benefits. This part also considers the limitations of the Family Medical Leave Act for grandparents who are intermittent caregivers. Finally, the section?notes how the persistent undervaluing of care work in society perpetuates inequality within and outside the workplace for aging grandmothers.
Part IV analyzes how current tax laws affect grandparent caregiving. While acknowledging the additional tax benefits allowed for senior citizens, the Article considers how the lack of flexibility within the tax code with respect to who receives benefits for the provision of dependent care does not permit equitable treatment of grandparents who devote a considerable amount of their resources to their grandchildren. This part also notes how Australia provides tax credits for family caregivers and examines whether the United States could implement different tax schemes to buffer the financial sacrifices made by grandparents for the family.
Part V investigates how local housing ordinances can negatively impact the multigenerational family. While aging in place, or staying in their own homes or communities, is ideal for older people, relocation is sometimes necessary. Multigenerational living can be complex with regard to family members having their own space within one residence. This part will explore how accessory dwelling units (ADUs), also known as granny flats or garage apartments, help extended families accommodate one another, and how certain local ordinances hinder the construction of ADUs.
Part VI briefly explores the various tensions created by the multigenerational family structure, including encroachment on the autonomy of senior citizens, health concerns of grandparent caregivers, and economic efficiency and equity considerations. This section catalogs the policy issues that need to be addressed in order to legally support intergenerational caregiving. Finally, this part lays the foundation for theoretical considerations to be addressed in the future regarding how the law can be utilized to create certain social rights and responsibilities shared between the government, individuals, and families.
The Article concludes by arguing that changes to the "living room laws" in America are necessary in order to have sustainable modern-day families. During tough economic times, it will be difficult to find the political will to make the major changes necessary to allow for flexible work schedules for parents in today's marketplace, additional financial support for child care centers, and other suggested reforms to achieve work-life balance. Before the United States could adopt methods similar to those of other modern countries to deal with the issues of multigenerational living and grandparent caretaking, legislatures and policymakers must address the social, economic and legal tensions at the heart of caregiving. Making changes in the law to incentivize grandparents to care for their grandchildren could serve as a way to prevent senior citizens from seeking assistance from the government later in life and greatly enhance the lives of children and families in general.
March 23, 2013 in Articles, Elder Law | Permalink
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