Secondhand Smoke and Child Custody

Secondhand smoke, also called environmental tobacco smoke (ETS), can have an impact on child custody decisions. Parental smoking can result in termination of parental rights, or a change of custody or visitation.

Courts now are mindful of the dangers of secondhand smoke, including the fact that it is a Class A carcinogen and that it contains  more than 40 substances known to cause cancer and others known to be strong irritants to human tissues and organs.

Children exposed to passive smoking have significantly reduced pulmonary functioning and their lung growth is hindered. Since they subsequently fail to reach their optimum lung growth, they are more likely to have pulmonary health problems as adults. In families where both parents smoke, the children have significantly more respiratory infections including lower respiratory infections, such as bronchitis and pneumonia, and are more likely to be hospitalized during the first two years of their lives for a serious lung problems. They are more likely to have reduced lung functioning and symptoms like coughing, sneezing, excess phlegm, wheezing, stuffy nose, headaches, sore throat, eye irritation, hoarseness, dizziness, nausea, loss of appetite, lack of energy, or fussiness.

In addition, children exposed to secondhand smoke are more likely to develop asthma. For those children who already have asthma, exposure to secondhand smoke increases the frequency and strength of a child’s asthma attacks.¬†Adults who were exposed to significant levels of secondhand smoke as children are more likely to have lung cancer, heart disease and cataracts.
Children exposed to parental smoking are more prone to becoming smokers.

In a custody fight, courts across the country can, and have, done the following:

  • Taken judicial notice of the effects of secondhand smoke on children.
  • Ordered the smoker to restrict his or her smoking when the children are present or before exercising a period of custody.
  • Transferred custody from the smoker to the nonsmoker parent.
  • Taken custody from both parents and awarded it to a relative or other third party.
  • Retained jurisdiction after entering a custody order to check on parental compliance.
  • Discounted the claims or efforts of a parent who is trying to quit smoking. The reasoning is that the parent may be more motivated by a desire to win the custody fight than a genuine concern for the health and welfare of the child.

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