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The Divorce Encyclopedia
Custody and Smoking

Term Definition Custody and Smoking - sometimes a consideration in determining the terms and conditions of custody and visitation.
Application in Divorce In recent years, in cases where one party raises the issue, courts have shown a willingness to make the tobacco use by one parent a consideration in the terms and conditions of custody and visitation by a parent who smokes. This has happened in cases where one parent smokes and the other does not.

In a 1988 New York case involving the divorce of a physician and his wife, the doctor sought an order of protection prohibiting his wife from smoking in his presence or that of the children. In a 1994 New Jersey case, the courts limited the smoking of a custodial mother after the noncustodial father raised the issue in conjunction with his wife’s smoking and the respiratory problems of the children.

And in 1994 Florida appellate court ruled that circumstances "may well exist" where a child in "a smoking environment...may not be in the best interest of the child." In this case, Thomas v. Harris, the child had special health considerations, and the ruling recognized that "the effects of second-hand smoke can be a valid consideration in a custody determination," according to legal observers.

It seems certain that courts will continue to consider the effects of second-hand smoke in custody cases where the issue is raised, particularly when the children involved have health considerations.

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