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Reconstructing Family Privacy

In the past decade, numerous state and local agencies have adopted policies of removing children from their mothers' custody because the children witnessed or could have witnessed their mothers being abused by husbands, boyfriends, or other intimates. In the Eastern District of New York class action lawsuit Nicholson v. Williams, domestic violence victims and their children sought injunctive relief from such a policy of New York's child protection agency. The court preliminarily enjoined such custody removals on, among other bases, Fourteenth Amendment substantive due process grounds predicated on a robust notion of "family privacy" protecting the mothers and their children. This Article attempts to broaden the discourse surrounding the case by situating the district court's conception of family privacy in the context of active debates within feminist legal theory about the proper role of privacy norms in regulating domestic spheres. While many feminist legal theorists have critiqued the allocation of legal power based on "formalist" divisions of society into "public" and "private" spheres, in part for the legal cover such assumptions have given to violence in the home, the case presents a unique opportunity to reconsider the instrumental and normative value of the "public-private" distinction and norms of privacy. I defend privacy's value for women and argue that Nicholson presents one possibility for bridging skepticism of and commitment to privacy norms in the domestic context. I argue, however, that while this reconstructed view of privacy is not necessarily gender-subordinating, it might not protect children's welfare as fully as possible. The approach may under-serve children when the contest between parental control and children's protection is closer than in Nicholson. The case thus raises concerns that the public-private distinction - no matter how drawn - inherently poses problems of coercion for those with less power within so-called private spheres.