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Smoking and Child Custody

Smoking can affect the outcome of a child custody case. There is a growing trend among the courts to favor non-smoking parents and in some cases to rule that smoking around a child constitutes child abuse.

Rapidly expanding anti-smoking laws have help set the stage for this new element in child custody cases. Those affected range from truly dangerous parents who have smoked around children with asthma resulting in multiple emergency-room visits due to life threatening smoke induced attacks, to those who merely allow a family member to smoke in the presence of a healthy child.

  • In many cases around the country smoking parents have lost custody to non-smoking parents, and in some cases where both parents smoke, custody has been granted to a non-smoking relative or third party.
  • Some courts have issued orders requiring a smoking parent to smoke only in one room of the house or outside, and have made arrangements to periodically check up on parents to ensure compliance.
  • Many courts have prohibited smoking inside vehicles with children.
  • Courts consider the smoking habits of others who may have contact with the child, such as grandparents, friends, and “significant others” when making custody decisions
  • Courts do not favor parents who are trying to quit or who only quit after the smoking has become a custody issue, based on the belief that they are only quitting to gain custody and will resume smoking once they case is settled

Smoking as child abuse
In some states the laws may be interpreted to indicate that parental smoking around a child can be considered child abuse. This is most likely if the child exhibits symptoms consistent with smoke-related health problems, or if the child is predisposed to develop an illness or have a reaction to tobacco smoke. Children with asthma, allergies, or a history of respiratory illness fall into this category.

Raising the tobacco issue may help or hurt your case
The effects of exposure to secondhand smoke are a legitimate concern for parents, and the courts are sympathetic to this concern, particularly in cases involving children at risk due to asthma, allergies, or a history of respiratory illness. However, parents who obviously raise this issue merely as a way to attack the other parent, may inflame the court and will not appear to have the child’s best interest at heart.

Parents who quit smoking well in advance of a custody battle have a better chance of gaining custody or at least consideration free from the tobacco controversy. Those who continue to smoke can help their case by smoking only outdoors, and doing everything possible to maintain a smoke-free environment for the child. Even parents who do not smoke, but allow others to smoke in the presence of their children can be at a disadvantage, and should take steps immediately to reverse the situation.

If you are facing a divorce or custody modification, contact an experienced child custody attorney today.

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