Proving a Change in Circumstances - Smoking Before and After the Divorce

The smoking routines of spouses during the marriage are also a consideration. In these cases, the courts have tended to treat the issue under a "change in circumstances" analysis. Under this standard, courts have dismissed the issue of ETS where the smoking parent smoked before the divorce. Thus, citing the lack of changed circumstances, in Cooley v. Cooley, 643 So.2d 408 (La. Ct. App. 1994, the court refused to modify custody because nothing in the record indicated that the custodial parent did not smoke prior to the divorce.

Notwithstanding the change in circumstance, there would appear to be strong arguments to consider ETS in some cases regardless of the previous smoking history of the parties. For example, where there is a clear and present danger to the child, the state's responsibility under the doctrine of parens patriae may require action notwithstanding a lack of changed circumstances, especially where clear harm to the child can be demonstrated and where the nexus between that harm and ETS exists. Courts may come to the conclusion that the issue of whether a parent smoked during the marriage is not a basis to avoid taking action to protect the child.

Remedies: A Change in Custody vs. Restrictions on Smoking

When confronted with the situation of a child suffering harm from exposure to ETS, the courts have employed one of two remedies. The obvious and most drastic is to award custody to the non-smoking parent. The far more common remedy is to craft restrictions on the right of the smoking parent to smoke near the child.

The extent of restrictions on a parent's smoking varies greatly. Some courts require an elimination of all smoking in the home and automobile regardless of whether the children are present. Others permit smoking in the home, but restrict when that smoking may occur. Still other courts merely order a prohibition of smoking around the children.

Regardless of the nature of the restriction, these cases often result in problems with monitoring and enforcement. Challenges that a party may have violated a smoking restriction often require a time-consuming hearing to determine disputed facts and allegations. When fact witnesses are not available, expert analysis may be necessary. In these cases, medical reports regarding the health of the child, the smoke content of the child's clothing, or the air quality in the custodial parent's home may be important in demonstrating a violation of the smoking restrictions.

There are cases where courts have modified or reversed a custody arrangement based on cigarette smoking. In Aubuchon v. Aubuchon, 913 P.2d 221 (Kan. Ct App. 1996), a change of custody was deemed the appropriate solution after the trial court found that the custodial parent's smoking "had harmed the children." In Badeaux v. Badeaux, 541 So.2d 301 (La. Ct. App. 1989), the court found a custodial parent's smoking to be sufficient reason to modify a joint custody arrangement by curtailing the time the child may spend with the smoking parent. In most cases, however, smoking results in a change of custody only where there is clear evidence that the smoking parent is ignoring either a court order or a doctor's advice to refrain from smoking in the presence of the child. In Mitchell v. Mitchell, 1991 WL 63674 at *3 (Tenn. App. 1991), the courts concluded that smoking in the presence of a asthmatic child in contradiction of a doctor's advise "was strong evidence of a lack of proper concern for the welfare of the child."



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.
   
PARENTS FOR LIFE -- Divorcing parents must remember that although they are no longer spouses, they remain parents for life.
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"