Abstract

In this paper, I argue against any state intrusion and interference that amounts to scrutiny of parents based on their decision to separate. The state, to my mind, ought not to be involved in childrearing decisions in cases of divorce unless there is a sufficient reason, and, as I will argue, divorce per se does not present a level of risk to children that justifies state intervention. The claims I am about to make apply not only to parental capability tests but also to the entire process of legal divorce, which allows the courts to decide who they believe is a better parent—a decision that, in my view, the state is not capable of (and should not be) making. I do not claim that states ought not to interfere at all but rather that, unless parents fail to do what they are morally required to do, state interference should not be permitted. To make this case, I present two claims: claim A, that only a risk reaching a certain level (which I will call level H) justifies state intervention; claim B, that the act of divorce does not meet level H; and therefore C, there is no justification for state intervention in divorce.