Effects of Smoking on a Child Custody Case

In their rulings, courts have already taken judicial notice that:

  • ETS consists of mainstream smoke exhaled from a smoker's lungs and sidestream smoke that comes directly from the burning tobacco;
  • secondhand smoke comes from all tobacco products, including pipe tobacco and cigars;
  • ETS is a Class A carcinogen (in a class with 15 other substances, including asbestos, radon and benzene, that are known to cause cancer in human beings);
  • it contains 4,000 substances with more than 40 of them known to cause cancer and many of them known to be strong irritants to human tissues and organs (including carbon monoxide (CO), ammonia, nicotine, hydrogen cyanide, benzo[a]pyrene, dimethylnitrosamine, tar, formaldehyde, and beta-naphthylamine);
  • and that the chemicals in secondhand smoke damage cell DNA.

Children exposed to involuntary smoking, or passive smoking, are more likely to develop:

  • respiratory infections, such as bronchitis and pneumonia;
  • symptoms like coughing, sneezing, excess phlegm, wheezing, stuffy nose, headaches, sore throat, eye irritation, hoarseness, dizziness, nausea, loss of appetite, lack of energy, fussiness, middle ear infections and a build up of fluid in the middle ear as a result of irritation and swelling of the Eustachian tubes;
  • reduced pulmonary functioning and lung growth, and pulmonary problems.

For those children who have asthma, exposure to secondhand smoke increases the frequency and strength of asthma attacks, the chance of accidental cigarette burns and hazards from fires and, as adults, the development of lung cancer, heart disease and cataracts. The children of smokers are also more likely to become smokers.

In New Jersey, as in most jurisdictions, the law on the issue of parental smoking and custody is far from settled. Currently, only one reported New Jersey case considered the effects of secondhand smoke on children in a custody context. In Unger v. Unger, 274 N.J. Super. 532 (Ch. Div. 1994), the court was presented with a motion to modify a consent order as to custody of two children. By virtue of a prior consent arrangement, the parties had placed several restrictions on parental smoking. First, they agreed that neither party would smoke in the presence of the children in the home and automobiles. Next, the mother, the custodial parent, would be restricted to only smoking in her bedroom when the children were present in the home. The mother was permitted to smoke in the living quarters of the house only when the children were not present, and provided further that she purchase an air purifier.

Notwithstanding the restrictions on smoking, the father in Unger argued that harm was inflicted upon one of the children due to secondhand smoke. Although not arguing non-compliance with the smoking restrictions, the father alleged that one child suffered from "a deep chesty cough . . . and that it decreases when he resides . . . in a smoke free environment." The father made application to reopen the custody issue maintaining that only he could provide the children with a totally smoke free environment and spare them from further harm. In New Jersey, courts are free to make any custody arrangement that serves the best interests of the child, and the courts consider several factors including "the safety of the child" and the "fitness of the parents."

After considering medical testimony and the children's medical records, the court found that the restrictions in the consent order left the child vulnerable to harm from the mother's cigarette smoke. The court stated that under the best interests of the child standard, the effects of smoking on children should be considered "as a health and safety factor."

Unger is clearly not the last word on smoking and child custody. Indeed, Unger reserved for a final hearing the issue of custody and therefore it is unclear as to the weight that the trial court ultimately afforded the issue as against other custody factors. As the trial court in Unger did not reach many of the complexities of the smoking issue, it is necessary to examine the developing case law from other jurisdictions to understand some of the important issues in smoking cases and where the trend in the law is headed.



Useful Online Tools

Suggested Reading
How to Win Child Custody How to Win Child Custody
This is not your basic child custody book like most you will find in a bookstore. This book is for people who are in the middle of a custody dispute or feel as though there is a possibility of one in the future. This is a resource for those parents who are fighting for their rights and/or custody of their children.

Download Now


Recent Related Blog Posts
    All Child Custody Blog Posts

Related Article Archives
Child Support
Counseling Issues
Custody & Visitation
Parental Alienation
Tax Aspects
    All Article Archives

Related Categories
Child Relocation
Collect & Paying Child Support
Divorce & Pets
Divorce Laws
Grandparent Rights
Parental Alienation
Parenting Through Divorce
Paternity Issues
    All Categories
Related Forums
Child Custody
Child Removal
Cohabitation
Child Support
Domestic Abuse
Grandparent Rights
Helping Children
Parenting
Stepfamily Issues
    All Forums

Resources & Tools

Bookstore Promotion Discount

Start Your Divorce Online Start Your Divorce
Several Options to Get Started Today.
Divorce Tools Online Divorce Tools
Keeping it Simple to Get the Job Done.
Divorce Downloads Download Center
Instantly Download Books, Guides & Forms.
Divorce and Custody Books Discount Books
Over 100 of the Best Divorce & Custody Books.
Negotiate Online Negotiate Online
Settle your Divorce and Save.
Custody and Support Tracking Custody Scheduling
Make Sure You Document Everything.
   
DIVORCED PARENTING -- In divorced parenting, both the custodial and noncustodial parent should remember one axiom: a former spouse who hurts the child’s other parent hurts the child.
Start Divorce
Custody Scheduling and Tracking

Children In Between - Online Parenting Class

Legal Logs

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:

 

Featured Book How to Win Child Custody

How to Win Child Custody

How to Win Child Custody

 

Featured Download Parent's Ability and Willingness to Cooperate: The Friendly Parent Doctrine, As a Most Important Factor in Recent Child Custody Cases

Parent's Ability and Willingness to Cooperate: The Friendly Parent Doctrine, As a Most Important Factor in Recent Child Custody Cases

Parent's Ability and Willingness to Cooperate: The Friendly Parent Doctrine, As a Most Important Factor in Recent Child Custody Cases

View Children & Divorce Resources in Our Online Bookstore

Guarantee Official PayPal Seal Facebook Twitter Versign Secure Site
Limited Offer Women's Rights Manual For Divorce
Cover Price: $55.95
Your Price: $29.95
You Save: $26.00

"The Absolute Best Investment in Your Divorce"

Men's Rights Manual For Divorce
Cover Price: $55.95
Your Price: $29.95
You Save: $26.00

"Uncover Your Options and Unleash Solutions"