Monday, October 06, 2008

Filial Responsibility: do we need a new concept of "household head" in the law?

This column has discussed the topic of filial responsibility laws (particularly in July 2007), on the books in 28 states in the U.S.m and more recently the notion of Confucian “filial piety” accepted to as an inherent part of culture in much of China.

I’ve noted that states rarely so far have enforced them outside of giveback situations, but that might change quickly with the fiscal crisis. It’s been suggested (here on July 24, 2008) that their constitutionality could be challenged, particularly on "takings clause" and due process grounds.

One other aspect of the problem strikes me. A parent is responsible for his or her minor children, but he or she (or the couple) has the right to control the behavior of the minor children. In contrast, an adult child is potentially responsible for an indigent parent, in at least 28 states, but he or she does not have legal control over the behavior of the parent that could lead to the indigence. This could well affect an adult child who did not have the experience of having or raising his or her own children, or never made the behavioral “choices” that lead to that responsibility.

As a societal matter, such an observation seems to comport with the calls from social conservatives and religious groups for more emotional “solidarity” within. Nevertheless, the legal system would have to deal with this observation. In 2005, Pennsylvania, with some measure of stealth, moved filial responsibility from the welfare code to the family code. The intention could have been to convey the idea that every extended family, when it has impoverished or disabled adult members, should have a “head” who takes responsibility for them but who has some authority that goes with the responsibility. If so, that would be a novel concept in the law, but it is worthy of exploration. The "power of attorney" concept(s) only partially addresses the problem. Such a responsibility (to "play family") can fall on the shoulders who never became a household head by marrying and/or having children. There would occur other questions about how such a concept works in many areas (obviously tax policy and maybe social security policy, as Nancy Polikoff’s book “Beyond (Straight and Gay) Marriage: Valuing all Families under the Law” (reviewed on my Books blog Sept. 21), as well as how the household head is expected to behave, socially and with public expression. Again, that’s why writers like Jennifer Roback Morse (reviewed on the same blog Sept 25) argue that there is too much “laissez-faire” in American families and that more solidarity should be expected among relatives, apparently even among those without children. In past generations, it had been the childless who were expected to stay home with the elderly parents.

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