When family law courts seek to make a determination regarding child custody, they often consider a wide variety of factors, all of which in the end speak to what situation may or may not be in the child’s best interest. These factors can range from the parents’ income to their mental health. But there’s one factor in particular that appears to be gaining momentum among family law courts, and it could impact a significant number of child custody hearings.
“Anything that can affect a child’s health is under the purview of the court and this includes tobacco use,” says Myra Fleischer, an attorney at Fleischer & Associates. “Take for instance a child who may have asthma and a parent who smokes. If the parent who smokes is not refraining from smoking around the child, this may cause the court to factor this into custody for health reasons.”
As courts continue to put smoking under scrutiny, smoking parents and non-smoking parents need to be aware of how their or the other parent’s habits may factor into a child custody case.
Smoking Statistics
According to the Centers for Disease Control, an estimated 46.6 million Americans smoke cigarettes. Each year, an estimated 443,000 die prematurely from direct or secondhand smoke exposure, while another 8.6 million live with serious health consequences. Additionally, more than half of children ages 3 to 11 are exposed to secondhand smoke.
Myra Chack Fleischer
“Secondhand smoke exposure causes serious disease and death, including heart disease and lung cancer in adults and sudden infant death syndrome, acute repertory infections, ear problems and more frequent and severe asthma attacks in children,” according to the CDC.
The legislatures and courts are aware of the harmful effects of secondhand smoke and have already begun to address the intersection between smoking and child custody. For example, in 2003 Maine passed a law forbidding foster parents from smoking or allowing others to smoke in their homes or vehicles. According to a study compiled by the Action on Smoking and Health, an anti-smoking advocacy group, in at least 18 states, courts have ruled that subjecting a child to tobacco smoke should factor into child custody hearings.
“Everyone knows the health risks,” says Linda Ostovitz, an attorney at Silverstein & Ostovitz. “A parent who heavily smoked in the presence of a child has a factor against him or her.”
Other noteworthy results from the ASH study include:
- In thousands of cases, courts have issued order prohibiting smoking in the presence of a child, especially in cars.
- Courts have ruled to bar smoking in a home up to 48 hours before a child arrives.
- In some instances, parents have lost custody or had visitation reduced because they subjected a child to smoke.
- Existing court orders regarding custody and visitation can be modified if a child is being subjected to smoke.
Snuff It Out
If you are a smoking parent, the best thing you can do to bolster your custody case is to quit smoking. Barring that, you should try to minimize your smoking as much as possible.
“Never smoke in the presence of the child, and do everything you can to try to quit and advocate for a non-smoking lifestyle for your kids,” Fleischer says. “Be the good example.”
Linda Sorg Ostovitz
Meanwhile, a non-smoking parent who is embroiled in a custody dispute with a smoking parent has a clear advantage. Fleischer says that non-smoking parents should definitely raise their concern about the smoking parent’s habits in court.
“If they have a concern, a parent may raise the issue as one factor any time that custody is at issue,” Fleischer says. “I tell parents who are going to court for custody to bring all of their concerns before the court.”
Whether you are a smoking parent or a non-smoking parent, you will want to hire a family law attorney to help you in your child custody case. Although any experienced family law lawyer should be able to help you with your case, if you wish to bring up the issue of secondhand smoke, you may want to ask the lawyer about his or her experience with such issues during the consultation.
Additionally, you and your attorney may need to seek out scientific experts to discuss either the effects or non-effects of secondhand smoke on children.
“I would also bring in medical experts if the child has underlying medical problems that are being affected,” Fleischer says.
