In a number of jurisdictions, smoking might tip the scales toward giving primary custody to the nonsmoking spouse, and it may even affect visitation rights. In a litigated divorce where a judge is being asked to rule on where a child should live, some courts consider exposure to second hand smoke because it has been proven to cause asthma attacks and ear infections in children and sudden infant death syndrome in babies.
States base custody decisions on the best interests standard, a list of factors a judge considers in determining the household where a child resides and the parent of primary physical custody. Even when best standards lists do not cite tobacco smoking specifically, second hand smoke is the primary consideration with parental smoking. Even when case law against parental smoking has not been established, or if there is no statutory reference in the state’s code, a judge can include it as a factor when making a custody decision. In fact, the mere presence of smokers in a house can be considered.
Smoking in a household typically becomes more of a custody factor if a child is already experiencing problems that might be worsened by exposure to smoke. For example, the court is likely to take into consideration the fact a child experiences worsening asthma.
Family courts have it within their power to issue other orders to try to contain the effects of second hand smoke on children even if smoking does not affect custody outright. For example, a judge might order that a party never smoke in his or her home when the child is present, or even for hours before the expected visit.