In recent years, public opinion about cigarette smoking has shifted dramatically. Internal tobacco industry documents disclosed that cigarette companies knew decades ago that cigarettes are addictive and pose substantial health hazards. No longer seen as an issue of personal choice, smoking is now often viewed as a widespread social problem whose costs and consequences are shared by all. Indeed, in many strata of American life smokers are pariahs of the lower orders.

According to former Surgeon General Richard H. Carmona, “The health effects of secondhand smoke exposure are more pervasive than we previously thought, the scientific evidence is now indisputable: secondhand smoke is not a mere annoyance. It is a serious health hazard that can lead to disease and premature death in children and nonsmoking adults.”

Since at least 1986, environmental tobacco smoke (ETS, which is called “second-hand smoke”) has been recognized to cause serious adverse health effects in children, including respiratory tract infections and irritation, particularly an increase in the incidence and severity of asthma.

Rapidly increasing anti-smoking laws have help set the stage for a new element in child custody cases, and smoking is becoming an effective means for a nonsmoking parent to gain leverage in a divorce struggle. Increasingly, courts face custody cases where parental smoking is a consideration in deciding custody and visitation.

The concern regarding the effects of cigarette smoking on children makes it appropriate to examine what importance the issue has in child custody cases. Courts have now recognized that parental smoking may be a deciding factor in custody disputes, and have issued orders prohibiting parental smoking in the presence of children.

An upstate New York judge recently ordered a mother to stop smoking in her home and in her car if she wanted to maintain her visitation rights with her thirteen year-old son, who lives with his father. In a case in Georgia, the mother was addicted to smoking and after divorce it was found that her child had asthma. The court detected that this mother was smoking in the presence of her child. This implied that she had insufficient concern for her child. This reason was considered strong enough for a change in custody.

A majority of courts ponder all the factors that affect the best interests of the child and then make a custody decision. It follows that smoking alone would not be an adequate ground for alteration in custody. However, smoking could necessarily make an impact.

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.