Familism, Social Welfare, and Parental Maintenance Laws

Familism comprises the force behind the relational power of individual-family-state tetherings in Taiwanese parental maintenance litigation. As an ideology, familism is constructed through social interactions (Levitsky Reference Levitsky2014) among humans and institutions. Because everyone who practices familism possesses diverse interests and positions, they produce different iterations of the ideology. In Taiwan, I found multiple renditions, which include state familism and variations of lived familism. Although their details vary, they share the fundamental parameters that families, first and foremost children, bear the primary responsibility of caring for the elderly.

Studies on familism diverge in emphases and contexts, but they converge around three features that help us understand familism in the Taiwanese story. First, governments, social groups, and individuals fight over interpretations of familism to protect or achieve political, social, or economic ends. For example, white nationalists in the United States campaign for their vision of families founded on Christian, heterosexual, cisgender marriage to “safeguard” their society from the rise of immigration, sexual and gender equality, or other perceived threats (Bjork-James Reference Bjork-James2020). Across the Taiwan Strait in the PRC, the Communist government has repurposed and coopted Confucian familism for nationalistic aims, most recently by constructing “filial nationalism” (Fong Reference Fong2004) to channel filial piety owed to one’s parents toward one’s nation (Yan Reference Yan and Yan2021). In Taiwan, as I illustrate with troubled parental maintenance litigation, the government struggles to preserve state familism in a form that protects its economic interests while keeping up with lived familisms in order to retain its political legitimacy to regulate families.

Second, no matter its variation or purpose, familism usually contains a moral requirement of placing family over the interests of some people, ordinarily those lower in the social hierarchy. For instance, scholars writing about US or Western European contexts criticize familism for not only holding family members responsible for one another, but also making them feel that it is inherently right and natural to do so (Walker Reference Walker1991; Levitsky Reference Levitsky2014), therefore convincing them to willingly make sacrifices to fulfill the obligation (Finch Reference Finch1989). This feminist perspective aligns with my finding on the indubitable duty to care for one’s parents in Taiwan; moreover, it resonates with a key criticism lodged by vulnerability theorists, that is, that neoliberalism’s moralization of self-responsibility diverts attention away from state accountability.Footnote ⁷ As another example, Confucian familism, which strongly influences Taiwanese society, contains the moral expectation that children obey, respect, and (when grown up) look after their parents (Liang Reference Liang and Ming2021).

Third, governments and others who strive to enforce their vision of familism usually employ the law to do their bidding. For example, officials of late imperial China implemented harsh penalties to protect parents’ supremacy over children, instrumentalizing “filial piety” laws to buttress the parallel ideology that subjects should unquestioningly obey their “father-mother,” the emperor (Du Reference Du2022). In the United States, pro- and anti-abortion activists contend about the regulation of abortion to control women’s societal roles (Luker Reference Luker1984) and thus their preferred form of familism. Additionally, twenty-four US states still have parental maintenance legislation, which is largely based on England’s Elizabethan Poor Laws mandating that household members support one another financially (Sheng Reference Sheng2021). A wide range of other jurisdictions, including Germany, France, Vietnam, PRC, Singapore, and India, also keep parental maintenance legislation on the books.

Understood through these three features of familism, the existence of parental maintenance laws in Taiwan is far from unique. State familism permeates Taiwanese civil and administrative laws regulating parental maintenance and welfare. Among them, the Civil Code (“the Code” 民法) lays the foundation for other laws by requiring children to be the first providers of maintenance to their parents. The Kuomintang (KMT) government of the Republic of China (ROC) enacted the Code in 1929–30 when it was based on the mainland, drawing influences from Qing dynastic codes as well as Japanese and European laws (Lee Reference Lee2016). Following its retreat from the mainland, the KMT government implemented the Code in Taiwan, where Japan had just ended fifty years of colonial rule in 1945. Largely unchanged since the Code’s enactment, CC-1114 to CC-1116 set out the maintenance rights and obligations among parents and other direct lineal relatives, spouses, and siblings.Footnote ⁸

From the Code’s foundational provisions, state familism extends to the Senior Citizens’ Welfare Act (SCWA 老人福利法), the Public Assistance Act (PAA 社會救助法), municipalities’ implementation principles and procedures, as well as administrative law concerned with debt recovery and review of executive actions in the area of welfare implementation.Footnote ⁹ These welfare laws and policies are the trigger for troubled parental maintenance. Against the backdrop of rapidly aging populations, governments like Taiwan practice the aforementioned tenet of state familism by offering limited welfare and putting the primary burden on family members, a strategy that minimizes public expenditure and the tax responsibility of wealthier classes (Montgomery Reference Montgomery1999; Fineman Reference Fineman2012). Only when family members fall short does the government conduct means-testing to provide the most minimal of assistance (Shee Reference Shee2007). In other words, Taiwan’s tripartite tetherings keep individuals and their families together in a manner that impels children to support their parents and eases their financial strain on the state, and concomitantly ensures that the state can police their compliance.

We see the relational power of state familism in action when a parent applies for welfare benefits at a municipal government office. This is the first of two typical opening scenes for troubled parental maintenance litigation. To assess the parent’s eligibility, the social worker would count their children’s income as part of “total family income” (PAA-5), regardless of the relationship between parent and child in reality.Footnote ¹⁰ If the inclusion of their children’s income takes the parent over the eligibility threshold, the parent would be disqualified from public assistance.

In the second typical opening scene for troubled parental maintenance litigation, a social worker places a needy elderly person in a care facility according to SCWA-25 (SCWA-41 since 2007).Footnote ¹¹ In Wan-Yi’s story, hospitalizing Mr. Ma and contacting her were preludes to such a placement. Subsequently, invoking their authority under the same law, the municipality would sue the children to recover expenses incurred by that placement, also regardless of their relationship.Footnote ¹²

State and Lived Familisms

Whether they are speaking of lived or state familism, nearly all experts and laypeople in my study bring up the tenet expressed by Mediator Ting: children ought to look after their parents, and the state should step in only if they are unable to do so. Such overlapping with lived familisms is why Taiwanese state familism enjoys some legitimacy and how the relational power of individual-family-state tetherings prevails (though not entirely nor always, as we will see further below).

In spite of the government’s claim and widespread perception among expert interviewees that parental maintenance litigation has increased sharply since 2010, the several thousands of cases per year is arguably an insignificant number in a jurisdiction of almost 24 million, out of which 4 million are aged sixty-five or older.Footnote ¹³ Most people, including nonlitigant lay interviewees in my study, perform their duties to elderly parents. When children of troublous parents litigate or when nonprofit organizations question parental maintenance laws, they are disagreeing that troublous parents fall within the scope of parental maintenance, not disputing the duty’s existence. For example, Wan-Yi and her mother told me that children should care for their parents—but just not somebody like Mr. Ma.

The lack of apparent dissent against this core tenet of lived and state familisms is not peculiar to Taiwan. Americans who struggle to provide long-term care to family members also accept their moral obligations and their government’s limited welfare policies (Levitsky Reference Levitsky2014). We can understand the seeming lack of dissent by apprehending the myriad ways through which relational power exerts itself. Think of power as assuming a variety of social controls along a spectrum (Digeser Reference Digeser1992; Chua Reference Chua2022). At one end are explicit controls that constrain behavior with direct punishments and rewards. Children who carry out their parental maintenance duties grudgingly, such as Wan-Yi, might harbor unhappiness but perform the obligation to avoid legal sanctions. Moving along the spectrum to the other end, controls become increasingly elusive by disciplining or naturalizing thoughts, feelings, and behavior such that people under those controls accept and no longer question the ideology (Nonet and Selznick Reference Nonet and Philip1978; Foucault Reference Foucault1979). Hence, children who willingly adhere to parental maintenance obligations are perhaps operating under the influence of largely taken-for-granted norms (Fei Reference Fei, Gary, Zheng and Berkeley1992; Huang Reference Huang2001) in a predominantly Han Chinese society.

Nonetheless, to be clear, state and lived familisms in Taiwan do not fully support but depart in some respects from each other. The Code only entitles elderly parents who are not self-sufficient (CC-1117) to a limited amount of monetary support. These legal requirements were already in the original version of the Code enacted by the ROC almost a century ago and did not replicate lived familisms of the time. Founded after a crumbling Qing dynasty, the ROC wanted to eliminate parents’ traditional lifelong domination over their children’s autonomy, labor, and property, so that it could control citizens directly to help save a nation weakened by invasion and internal dysfunction; the Code’s maintenance provisions originated from such a political agenda to create rights-bearing citizens (Du Reference Du2022) while trying to prevent the needy from becoming a state burden (Huang Reference Huang2001).

I pointed out earlier that familism is subject to contestations, adaptations, and other interactions among individuals, their families, and the state. Since the early days of the Code, the varieties of lived familism have not stopped evolving. Moreover, the practices of familism in Taiwan, just as they are elsewhere (for example, Liu Reference Liu2021; Yan Reference Yan and Yan2021), have always been plural. As Taiwanese people experience economic, political, or other macro-level developments—which I discuss further in the next section—they modify their sense of self and relate differently to others and to institutions. Gradually, with their new composition of relational power, they may practice lived familism(s) differently, question state familism, and remake the institution of family. In response to these changes, the Taiwanese government tries to balance two competing concerns: a modernization vision that includes keeping state familism at pace with evolving lived familisms and tending to the rights and needs of elderly citizens;Footnote ¹⁴ and the preservation of traditional “morality” in aid of its economic interests.Footnote ¹⁵

Taiwanese troubled parental maintenance litigation, therefore, belongs to an ongoing story about individual-family-state tetherings. To better understand this phenomenon, I now home in on the workings of relational power before CC-1118-1. The analysis will set up the next section, where I focus on CC-1118-1 and its aftermath.

Monies, Morals, and Mandates: Before CC-1118-1

On the grounds of a temple forty minutes outside a southern Taiwanese town stand a row of twenty-four life-size statutes, each representing a story from the classic, The Twenty-Four Filial Exemplars (二十四孝). The first statute portrays mythical Chinese leader Shun (舜). According to legend, even though Shun was abused by his father and stepmother, he still took care of them in their old age (Field notes, December 5, 2020).

The legend of Shun epitomizes the Taiwanese individual-family-state relationship before the 2010 passage of CC-1118-1. Back then, the Code required adult children to provide financial maintenance to their parents no matter their parents’ past behavior so long as they had no means of supporting themselves (CC-1117). State familism in this regard reflected one interpretation of the ideology associated with “family in ideals” (Chen and Li Reference Chen and Allen Li2014) and described by expert interviewees as “parents do no wrong” (天下無不是的父母). The saying supposes that parents, by virtue of their status as parents, deserve their children’s care and respect, irrespective of their treatment of the children.

In other words, tetherings before CC-1118-1 embodied relational power that strongly favored parents and minimized the state’s responsibility. However, this state interpretation of familism was removed from reality. Its enforcement stirred up tension with troublous parents and their children, demonstrating incongruences between state and lived familisms where troublous parents were concerned.

In the subsection “Familism, Social Welfare, and Parental Maintenance Laws,” I explained that parents confront the force of state familism in the first typical opening scene for troubled parental maintenance litigation—when they apply for welfare, and social workers count their children’s income in “total family income” to determine their eligibility. If the inclusion disqualifies a parent from welfare, they would be stuck with their offspring for monetary support, whereas the state would avoid granting assistance except where their children are financially weak (CC-1118). Such enforcement of state familism most frequently caused suffering to one kind of elderly citizens, troublous parents, who were “in a bad state and have no independent means” (Social Worker Hui, February 27, 2019). Troublous parents were estranged from their children, who would be unwilling to support them.Footnote ¹⁶ Otherwise, these parents probably would not have wound up at a municipal welfare office. To make their children provide maintenance, they would have to sue. However, they were usually reluctant to do so.

“To ask their children for maintenance is to lose face. And parents would also rather suffer on their own than cause suffering to their own children. They only sue if they really have no other way” (Lawyer Ling, November 28, 2019). Troublous parents who were ineligible for public assistance and who also rejected social workers’ advice to sue their children might turn to charitable organizations, muddling along hand to mouth.

Correspondingly, such enforcement of state familism most frequently brought hardships to one kind of children, those of troublous parents. Because of the “parents do no wrong” nature of their legal duty, when the children of troublous parents were sued for maintenance, they could not escape their obligation unless they lacked financial ability (CC-1118).Footnote ¹⁷ For example, in a 2006 case, the judge noted the children’s allegations and described their father as remorseless but went on to order parental maintenance.Footnote ¹⁸ According to expert interviewees, some judges might implicitly account for the parent’s alleged troublous conduct and reduce the amount based on the civil law principle of honesty and trust (CC-148). However, judges’ rulings seldom explained any such approach.

The lawsuits not only triggered financial worries but also tore open old wounds. One of my interviewees, Lawyer Hong, still remembers years later what her two clients said to their mother, who sued them for maintenance: “‘Do you know when I got my first period?’ Their mother could not answer” (May 15, 2019). Other interviewees recall similar stories:

To persuade these children to accept an unpleasant reality, social workers, court-appointed mediators, and judges often would say to them, “He is still your father” (他還是你的父親) or, “The parent is still family,” phrases that support the notion of “parents do no wrong.”Footnote ²⁰

Troublous parents and their children are also the most frequent casualties of state familism in the other typical scenario, where social workers placed the elderly in a care facility and municipalities demanded that their children pay back the expenses under SCWA-25/41. Shocked to receive a bill for hundreds of thousands of Taiwanese dollars for their troublous parents (TWD100,000 equals approximately US$3,200), these children usually repudiated municipalities’ claims. The municipalities then issued administrative sanctions (行政處分), which the children objected to with administrative appeal reviews (行政訴願) followed by litigation in administrative law courts. Like civil law courts, administrative appeal review committees and administrative law courts failed to give explicit consideration to children’s counterclaims of troublous parental behavior, reiterated children’s obligations under the Code and SCWA-25/41, and upheld municipalities’ debt claims. Some children even made a detour to civil court, hoping to obtain a reduction or exemption under the financial exception or somehow convince a judge to let them off the hook. If the children failed in their civil or administrative litigation, the municipal governments would then exercise discretion to keep chasing them for the money owed.

Making matters worse, children of troublous parents usually refused to fetch their parents from the placement facility, either to admit them to a facility of their choice or to take them home. Required to fulfill their public duty under SCWA, social workers could not remove parents from the placement facility simply because their children did not want to take over or pay up. Therefore, so long as a municipality kept a parent under SCWA-25/41 placement and so long as it continued to pursue the accrued debt, the children’s financial troubles would not abate but would rack up as they continuously litigated fresh administrative sanctions for new periods of debt.Footnote ²¹ Placements under SCWA-25/41 are supposed to be “short-term” based on the municipality’s discretion. However, for the majority of SCWA-25/41 debt recovery cases that I analyzed, the duration of such placements averaged two to three years, with the longest dragging on as many as nine years.

To sum up, Taiwan’s relational power of familism, including the core tenet shared by state and lived familisms, was already operating through the Code and welfare laws prior to CC-1118-1’s enactment. Put in practice, these laws singled out troublous parents and their children, rendering them exceptionally vulnerable to the force of familism. Yet, some of these children resisted, indicating that state and lived familisms were not totally in sync, particularly with respect to troublous parents. In the next section, I concentrate on the openness of tetherings and analyze more closely the contentions against state familism in Taiwan, the potentiality for relational power to succumb to change, and the misfortunes of troubled parental maintenance litigants.

Familism and Openness

“I still have the ability to work. So I don’t need [my children] to give me money when they start working …. These days, we also need to care for our next generation, so we can only try our best to keep the older generation company” (Madam Tseng, teacher, February 28, 2019).

“My generation has different experiences. We know what else is going on in different cultures …. Young people like me want to be more independent … and parents also tell us not to worry about them because they have their own money for retirement” (Ni-Ni, graduate student, May 13, 2019).

In “Relational Power of Tetherings,” I discussed the foundational tenet of familism that expects children to shoulder the main responsibility of looking after their parents. Although this tenet exists across state and lived familisms, Taiwanese actually practice it variously. Madam Tseng’s and Ni-Ni’s views are common among forty- and twenty-year-olds, respectively, in my study. They agree about children being the primary provider of parental maintenance, but they do not consistently prioritize this duty over other responsibilities, interests, or needs. In other words, Madam Tseng and Ni-Ni’s views illustrate tetherings’ openness. Despite familism’s might and reach, tetherings of individual-family-state can and do alter. Transformations occur when parties in the relationship interact with different resources, such as law, money, and people, or reinterpret their available resources, modifying their capacities and thus their relational power and the ways they engage with one another. These transformations include their interpretations of law and decisions on whether and how to use it, that is, changes to their legal consciousness.Footnote ²²

In the previous section, I also pointed out that state and lived familisms differ from each other in some respects. Madam Tseng’s and Ni-Ni’s practices of lived familism exemplify another divergence from state familism due to the openness of tetherings over time. The Code prioritizes the maintenance of senior direct lineal relatives (CC-1116), a requirement that perhaps conforms to an idealized or traditional form of lived familism in which parents’ needs and well-being rank above everyone else’s. However, in contemporary Taiwan, young and old interviewees in my study channel their best resources and attention toward their children or grandchildren, or agree that this should be the practice.

Such changing practices reflect how generation after generation reshapes lived familisms. Taiwanese society will turn “super-aged” by 2025, when the number of people aged sixty-five or above will reach 21 percent of the total population. Taiwanese are bearing fewer offspring, children are enjoying more autonomy from parents, and women are growing in economic independence. Responding to these social changes, the Taiwanese government since democratization in the late 1980s has continuously tried to realign state familism with the ever-diversifying forms of lived familism. It has reformed state pension, health care, and insurance, and repeatedly amended laws that regulate familial relations and welfare (Kuo Reference Kuo2007). The ongoing efforts at realignment aim to balance modernization goals that bolster the government’s political legitimacy with the conservation of traditional “morality” that helps fortify its economic interests. In the next four subsections, I refer to the relevant legal and welfare developments as I continue to draw out the openness of tetherings and their effects on individuals, their families, and the state.

Changing Familism and the Enactment of CC-1118-1

By signifying how tetherings are open to and transformed by individual-family-state interactions, the enactment of CC-1118-1 substantiates speculations of vulnerability theory that the state is susceptible to change. Before CC-1118-1, social workers and other state agents implemented a version of state familism that epitomized “parents do no wrong” (see the previous section). Children, save for the indigent, had to provide maintenance to their troublous parents, regardless of their behavior as parents. Confronted with their troublous parents’ legal demands or the state’s debt claims for their care expenses, these children endured financial anxieties and emotional pain.

Eventually, the near-absolute duty of parental maintenance could no longer withstand the pressures of evolving lived familisms, which made state familism appear inhumane and out of touch. “Taiwanese people in my generation are liberal and individualistic. We go by the logic that ‘you reap what you sow.’ … We won’t necessarily obey you just because you are the elder” (Kai-Ling, sole proprietor, May 16, 2019). Although Kai-Ling expressed this view a decade after CC-1118-1’s passage, the thirty-something echoed public sentiments of the late 2000s. By then, the wounds to which state familism exposed the children of troublous parents had grown less acceptable to the Taiwanese public. The media dramatically publicized the injustice of troubled parental maintenance with headlines such as: “Refuse to maintain father who abandoned their family; four siblings sued” and “Abandoned as a child by mother; sued by mother 33 years later.”Footnote ²³

Nonprofit organizations and Legal Aid campaigned the Legislative Yuan to reform the Code, arguing that it would be egregious for victims of domestic violence to be legally responsible for their troublous parents’ maintenance. Although the Taiwanese government refers to traditional interpretations of Confucian familism to construct state familism, this position sometimes runs counter to that of building a modern Taiwan, a society that keeps up internationally with social and legal developments, which include protection from domestic violence.Footnote ²⁴ In 2009, the tension between these two interests played out in the Legislative Yuan, when 71 out of 114 legislators across political parties tabled four proposals to amend the Code’s parental maintenance provisions. The legislators bemoaned the decline of “traditional morality” and expressed worry that the proposed amendment would erode it further. Nonetheless, like Legislator Chao, quoted at the beginning of this section, they acknowledged that Taiwanese law had to stay relevant to protect their citizens and voted unanimously for the amendment.Footnote ²⁵

On January 7, 2010, CC-1118-1 came into effect. When tabling the bill, legislators were most concerned about shielding children of domestic violence from their parents’ claims for maintenance. However, they ended up with a law that encompasses a broad range of conduct that troublous parents are regularly accused of (“Introduction”), which led to far-reaching ramifications for individuals, their families, and the state. The new provision enables children to reduce their maintenance obligation if their parents had “intentionally maltreated, insulted, or committed severe misconduct, physically and spiritually against them, their spouse, or their close relative” (CC-1118-1-1) or had “without justifiable reason … not fulfil[ed] their obligation” to the children (CC-1118-1-2); and to be exempted if any such action amounted to “gross seriousness.”Footnote ²⁶

Empowering Litigants while Taxing the Government

With CC-1118-1, the Taiwanese government adapted state familism in reaction to the changes of lived familisms, thereby adjusting the tetherings of individual-family-state and their relational power dynamics. CC-1118-1 expanded the state’s responsibility, increasing the likelihood that it would have to provide welfare to elderly parents. As intended, it empowered children’s capacity to counter their troublous parents’ claims, displaying how the openness of parent and child shifted between the pre- and post-CC-1118-1 periods.

However, CC-1118-1 unexpectedly generated two additional sets of consequences that cost the state money and legitimacy. Also illustrating openness, the unintended outcomes signify, once more, the state’s susceptibility to threats and harms created by persistent engagements with its laws and policies. These outcomes also address a key criticism against vulnerability theorists for neglecting the workings of agency (“Tetherings, Vulnerability, and Law”). Faced with the direct enforcement of state familism, troublous parents and their children demonstrate resourcefulness at using the law to reap advantages vis-à-vis each other and the state. Their clever courses of action often grew out of interactions with social workers and friends who brought their attention to CC-1118-1 and its possibilities.Footnote ²⁷

In the first set of unintended consequences, CC-1118-1 presents a solution to troublous parents disqualified from welfare because the inclusion of their children took their “total family income” over the eligibility threshold:

Before CC-1118-1, troublous parents sued their children to get money. After the passage of CC-1118-1, troubled parental maintenance lawsuits become what is known to lawyers, mediators, and social workers as “crossing water” (過水)—going through the steps to complete the process. “The goal of the lawsuit is to lose … on the basis that the children have no duty under 1118-1” (Lawyer Hsia, May 21, 2019). As Lawyer Hsia points out, troublous parents’ ultimate purpose is to qualify for welfare by forcing their children to mount a CC-1118-1 defense and obtain an exemption from their maintenance obligation. Municipalities consider CC-1118-1 rulings to be a type of “special circumstances” (PAA-5-3-9), which allows them to exclude exempted children from “total family income” and approve troublous parents for public assistance. This is why troublous parents now sue all of their children whose income affects their eligibility, contrary to popular belief that elderly Taiwanese are more likely to adopt a traditional form of lived familism and target their sons for maintenance (despite the Code’s stipulation of equal responsibility among all children). In a variation of “crossing water,” children initiate the lawsuit against their troublous parents to seek a CC1118-1 ruling. These children usually would have spoken with the troublous parent’s social worker and decided to take the initiative so that both sides could move on from each other.Footnote ²⁸

In the second set of unexpected outcomes, CC-1118-1 gives children a way out from being saddled with expenses incurred by their troublous parent’s placement in a care facility under SCWA-41. Before CC-1118-1, children could not ward off municipalities’ debt claims in front of administrative appeal review committees and administrative law courts. With CC-1118-1, they could go to civil court and successfully invoke CC-1118-1, and then turn to administrative fora to seek a reduction or exemption based on the CC-1118-1 ruling—prospectively for debts incurred from the date of the ruling and, since May 2020, possibly retrospectively for debts incurred before the ruling (more on the 2020 amendments below).Footnote ²⁹

Both sets of unintended consequences are costly and embarrassing for the government. “Prove parents are scoundrels, lawsuits to waive parental maintenance soaring,” one newspaper announced ten years after the enactment of CC-1118-1.Footnote ³⁰ From 2011 to 2019, CC-1118-1 litigation rose steadily to make up 10 percent of all family law cases in Taiwan.Footnote ³¹ Although practices vary across municipalities, expert interviewees in my study attribute the spike to municipalities’ shrinking welfare budgets and the stringency with which they increasingly assess welfare eligibility and pursue SCWA-41 debts.

To exacerbate the situation, it turns out that social workers are reluctant to exercise discretion under PAA-5-3-9,Footnote ³² which they have enjoyed since 2007, to exclude children of troublous parents directly from the calculation of “total family income.” Troublous parents’ history could possibly meet “special circumstances,” but social workers usually prefer to apply CC-1118-1 rulings to PAA-5-3-9. “Few social workers want to bear this responsibility—make the call and put it in their report” (Social Worker Wei, May 19, 2019). Unlike judges, social workers lack authority and resources to investigate the parties’ claims, and their determination is valid only for a short period, such as twelve months. Furthermore, my interviewees explain, they worry about erroneously disbursing the state’s money.

The more strictly the government enforces state familism and conserves its coffers, the more CC-1118-1 litigation surfaces to tax its resources. Social workers, mediators, judges, and other court officials have to process and investigate litigants’ claims. Lawyers funded by government Legal Aid contribute time and expertise to represent troublous parents and their children. In 2019, the Control Yuan ordered an investigation and concluded that municipalities encouraged litigiousness by relying on CC-1118-1 rulings to exclude children with “special circumstances” from the “total family income” calculation. The strains of CC-1118-1 litigation would come to a head for the government, leading to more adjustments of tetherings, which I examine later.

Dis/empowerments and Tolling the People

In short, as analyzed in the preceding subsection, CC-1118-1 empowers both parent and child in ways anticipated and unanticipated by legislators, and they learn to handle each other and state familism in a novel manner. Unfortunately, troubled parental maintenance litigants’ new engagements with the modified version of state familism produce disempowerments alongside such empowerment. The recalibrated tetherings of individual-family-state simultaneously open up troublous parents, their children, and their allies to physical, emotional, and psychological strains when they use CC-1118-1 to secure financial relief.

Therefore, post-CC-1118-1 tetherings further demonstrate the multifarious nature of openness, as well as the state’s persistent role in exacerbating the sufferings of troublous parents and their children. In “Relational Power of Tetherings,” I explained that the imposition of state familism tends to disadvantage people with lower social status, for instance, impoverished fathers in US child support cases (Brito Reference Brito2012; Haney Reference Haney2018) and mothers who receive welfare benefits in the United Kingdom (Gillies Reference Gillies2007) and the United States (Gilliom Reference Gilliom2001). Similarly, by enforcing state familism, the Taiwanese government compounds the marginalization of troublous parents and their children. Troublous parents are financially and physically weak by the time they attract the attention of social workers, whereas their children are often victims of domestic violence committed by them or have suffered economic and other difficulties as a result of their behavior. In the rest of this subsection, I detail how the process of troubled parental maintenance litigation is the “punishment” (Feeley Reference Feeley1979) for such litigants—by inflicting upon them corporeal-emotional and moral hardships.

Further Exposures and Amendments to SCWA-41

At the same time that recalibrated tetherings lay open troublous parents, their children, and their allies to corporeal-emotional stress and moral disapprobation, they expose the state to new problems. In the subsection “Empowering Litigants while Taxing the Government,” I highlighted that troublous parents and their children taxed government resources when they took advantage of CC-1118-1. But this was not quite the entire problem. CC-1118-1’s implementation by courts and administrative fora did not completely address the children’s sense of injustice triggered by the enforcement of state familism in the first place. These inadequacies additionally tested the government’s resources and provoked questions about its legitimacy to regulate familial relations. By the end of the first decade of CC-1118-1, the Taiwanese government was again feeling the strains of troubled parental maintenance, so much so that it passed major amendments to the SCWA in May 2020. This further adjustment of tetherings evinces yet again that the state is changeable by human/institutional engagements with the relational power of familism, which include not only empowering but also disempowering forms of engagement such as those experienced by troubled parental maintenance litigants.

The additional inadequacies of CC-1118-1 concerned SCWA-41 placement expenses, which municipalities try to recover from children after admitting their troublous parents to a care facility. As it turned out, in SCWA-41 debt litigation, municipalities, administrative appeal review committees, and administrative law courts applied CC-1118-1 rulings prospectively, from the date of the civil court ruling. This meant that despite obtaining a CC-1118-1 exemption, children could not use the ruling against the recovery of debt for their troublous parents’ expenses incurred before the CC-1118-1 ruling. Most children who get sued for SCWA-41 debt usually find out about their troublous parents’ situation after a social worker has placed them in a facility. In other words, expenses related to SCWA-41 placements usually start to run before the children ever have a chance to consider seeking a CC-1118-1 ruling. Therefore, the government’s debt claims usually prevailed, at least for the portion incurred before the CC-1118-1 ruling.

Digging in their heels, some of these children refused to pay the old debts. Their refusal and municipalities’ pursuit of them accumulated more pressure on government resources. Municipalities could exercise discretion to write off the debt, promptly adding to the state’s financial burden. Or, to keep alive their right to the debt, they could expend more time, money, and labor to continuously enforce the outstanding obligation. In the latter scenario, they would send a notification followed by administrative sanction, which would set off a series of appeals by the children, first to an administrative appeal review committee and then to administrative courts. The agencies could also obtain compulsory enforcement. However, it is unclear if they did so in the cases that I located or if, for whatever reason, they exercised discretion not to and ultimately absorbed the debts.

Besides taxing government resources, the inadequacies of CC-1118-1’s implementation and its provocation of litigation exacted more physical, emotional, and psychological tolls on troublous parents and their children. One year after the enactment of CC-1118-1, Taiwanese newspapers were already criticizing the government for these deficiencies. One newspaper headline exclaimed, “Sham judgment? Exempted from maintaining father who abandoned the family but still have to pay up?”Footnote ³⁹ Ten years on, politicians had to acknowledge the implementation problems and the embarrassing cost of CC-1118-1 litigation:

On May 12, 2020, the Legislative Yuan passed a lengthy bill to amend SCWA. The key amendments to SCWA-41 explicitly authorize municipalities to reduce or cancel accrued debt if the duty bearer has “special circumstances” (SCWA-41-4-1 to 41-4-2), that is, they do not need a CC-1118-1 ruling, and to invite experts, scholars, and civil society groups to assist with the assessment of special circumstances (SCWA-41-5). In addition, the official legislative reasons state that the amendments are meant to allow the retrospective application of CC-1118-1 decisions to debt incurred prior to the ruling date.Footnote ⁴¹

Can the 2020 amendments reduce what Taiwanese legislators described as “social tragedies,” the result of dis/empowering engagements with the state regarding troubled parental maintenance duties? Can the revised welfare laws stem the tide of litigation and better safeguard government resources? The crux may lie with whether officials will exercise their discretion under SCWA-41-4-1 and 41-4-2. The two provisions bear shades of PAA-5-3-9, which enables social workers to directly exclude children in “special circumstances,” for instance, those who have troublous parents fitting CC-1118-1-like scenarios. But, as discussed above, social workers seldom apply PAA-5-3-9 directly and rely instead on CC-1118-1 rulings.

In conversations with social workers at different municipalities in 2022, some disclosed that they still referred to CC-1118-1 rulings to determine whether to ease the SCWA-41 debt of children of troublous parents. Others insisted that their offices no longer did so; however, my analysis of administrative review appeal decisions after the 2020 amendments originating from those municipalities suggests otherwise: these agencies still put immense weight on CC-1118-1 rulings, more often than not dismissing appeals by children who did not submit such rulings as evidence. As for the retrospective application of CC-1118-1 rulings, the impact of the SCWA amendments may be limited. To date, it seems that municipalities want to exercise discretion by allowing retrospective application only in certain circumstances, such as when the children’s basic livelihood would be severely compromised.Footnote ⁴²

Therefore, my analysis indicates that recalibrated tetherings after the 2020 amendments continue to keep parents, children, their families, and the state open to similar threats and harms as before. In November 2021, when I followed up with a judge, without any suggestion on my part about CC-1118-1 litigation, she messaged, “There are more and more cases!” (Judge Yang, November 9, 2021). Although Judge Yang did not provide any statistics, her perception as an experienced judge was publicly confirmed nine months later by the Judicial Yuan:

It remains to be seen whether the Taiwanese government will tweak the tetherings of individual-family-state once more. When passing the 2020 SCWA amendments, the Legislative Yuan called on the Ministry of Health and Welfare to conduct a review one year later. However, the COVID-19 pandemic has probably delayed any review plans for now.

Interviews

I interviewed eighty-eight people in Taiwan.Footnote ⁴³ I used Mandarin Chinese in the majority of these interviews and Taiwanese, a variety of the Minnanese dialect, in interviews with elderly residents in southern towns and villages. The bulk of these interviews took place between 2019 and March 2020, before the COVID-19 pandemic made travel to Taiwan too restrictive and unsafe. Since April 2020, I have kept in touch with key informants on messaging apps and email, and my Taiwan-based assistant has conducted thirteen in-person and telephone interviews.

The interviewees come from urban and rural areas. Fifty-five are experts: judges, judicial officers, law clerks, court-appointed mediators, lawyers, social workers, nursing home operators, and borough chiefs (里長), the lowest-level elected official. Out of the thirty-three lay interviewees, sixteen are litigants and their family members. The others come from diverse backgrounds in terms of age, place of residence, economic status, occupation, religion, sexuality, gender, and education, and they are people who have not given much thought to parental maintenance laws, much less mobilized them.

The majority of interviewees identify as Han Chinese, Taiwan’s dominant ethnic group. A minority are Indigenous peoples, whom I sampled for tacit comparison. My professional and personal friends provided the initial contacts. Subsequently, I asked interviewees to connect me with other people, and specified certain characteristics, trying my best to interview the range of abovementioned experts in the same province, district, or city, and laypeople from the same families, neighborhoods, and villages. This combination of snowball and purposive sampling helped maintain some consistency among interviewees while achieving diversity across demographic indicators.

I asked experts about the cases they handled, the formal legal processes, and their views on parental maintenance laws and familism. I talked to lay interviewees about their family history and living and care arrangements to elicit discussions organically about the elderly. I also asked if they knew about parental maintenance laws and for their views on these laws and the social practices of looking after parents.

Courtroom Observations

Two district judges allowed me to conduct observations of court proceedings on parental maintenance. I observed the proceedings at a district court whose jurisdiction encompasses suburban and rural areas, while my assistant attended the proceedings at a courthouse in a metropolis in the summer of 2019. These two courts are part of the twenty-one district courts in Taiwan. The Judicial Yuan, the highest judicial organ of Taiwan, consists of Constitutional Court, Administrative Court, and Ordinary Courts (criminal, civil, and specialized). Civil and criminal courts operate on a three-tier system, with district courts being the lowest, followed by the High Court and Supreme Court. Administrative courts function on a two-level system of High and Supreme Court.

Court and Administrative Decisions

I located relevant decisions from district courts, high courts, and supreme courts from the Judicial Yuan’s database and randomly sampled 20 percent from the 1,608 civil court rulings and 64 administrative court rulings. I also found and analyzed 145 relevant administrative review appeals from municipal governments’ websites and research databases. The civil court rulings pertain to parental maintenance provisions in the Code. The administrative court rulings concern children’s SCWA-25/41 debt litigation against municipal agencies; they arise from appeals against administrative appeal reviews, which are decisions by municipal governments on challenges against administrative sanctions.Footnote ⁴⁴ The majority of litigants are probably Han Chinese, though I generally cannot discern litigants’ ethnicity from court records. Indigenous peoples do adopt Han Chinese surnames for official records, and only in a few instances do court rulings contain information that allowed me to draw inferences, for example, a statement referring to the litigant’s residential area known to be populated by Indigenous peoples.

The court rulings available online are predominantly those issued after 1999. Hard copies of pre-2000 rulings are archived at the Judicial Yuan, which I did not access, at least partly due to the onset of the pandemic. Because CC-1118-1 cases appeared from 2010 onward, they would not have been included in the pre-2000 rulings anyway. Nonetheless, I supplemented post-1999 rulings with compilations of older Supreme Court cases. My expert interviewees provided additional insights into parental maintenance litigation that took place before 2010.

Court rulings and other official decisions are the tip of the iceberg of relevant grievances. Many more disputes do not enter the formal system or reach a formal decision. Besides, courts and municipalities do not uniformly upload their decisions or keep them online after they are uploaded. Therefore, the universes of parental maintenance rulings and administrative decisions are undetermined, and I do not know what percentage the cases available online represent. At any rate, I analyzed court and administrative decisions not to assess their correctness, compile statistics, or confirm hypotheses. Rather, I used the records to triangulate the data from interviews and other sources and construct a composite picture of the issues and facts for qualitative analysis and theory generation.

Other Sources

I reviewed records of judges’ conferences and, with the presiding judges’ and litigants’ consent, six court dossiers of troubled parental maintenance litigation. Additionally, I examined documents from three of the other four branches of Taiwanese government, the Legislative, Executive, and Control Yuan, which are, respectively, the state organs of lawmaking, of administration, and of supervision, audit, and censure.Footnote ⁴⁵ These documents include current and outdated legislation, amendment bills, legislative debates, and annotations from the late Qing dynasty and founding years of the ROC; ministries’ circulars, directives, and reviews of amendment bills; municipal rules and regulations; and investigation reports. I also analyzed newspaper articles and writings by Taiwanese academia and lawyers.