Law Blog

Tuesday, May 22, 2012

Should Smoking Be A Factor In Determining Child Custody?


Smoking often makes headlines for its negative impact on health, but there is a growing trend whereby probate and family court judges are considering a parent’s smoking habit when making child custody arrangements.

When any married or non-married couple with children separates, the probate and family court has jurisdiction to determine which parent will have primary physical custody and to set up a visitation schedule for the non-custodial parent.

Courts use a “best interests of the child” standard when determining appropriate custody arrangements.  Through the legal process - the presentation and weighing of evidence - judges are charged with evaluating the “fitness” of each parent.  In about 18 states, courts have ruled that a parent’s cigarette smoking habit should be considered when determining child custody arrangements.

Typically, things such as alcohol and drug abuse, or a previous history of neglect or violence, are considered when determining custody. It is becoming more and more commonplace for judges to also inquire into a parent’s cigarette smoking habits in order to comprehensively determine what type of custody placement would be best for the child. Judges may be even more likely to consider smoking a factor when the child has allergies or respiratory issues, such as asthma.

Judges across the country are quickly beginning to favor nonsmoking parents. In addition to considering smoking as a factor in determining custody, practitioners should be ready to argue for custody orders that contain specific provisions relative to a smoking parent's conduct, for example:

  • Requiring a custodial parent who smokes to only smoke outdoors;
  • Requiring a smoking parent who has visitation to abstain from smoking for at least 2 days prior to the upcoming visit and to abstain during the visit;
  • Prohibiting a smoking parent from smoking while riding in a vehicle with the child; or
  • Putting smoking restrictions on people who have frequent contact with the child, such as grandparents, close family friends, and/or a parent’s significant other.

If you currently co-parent your child and are concerned about the other parent’s smoking having a negative effect on your child’s health and wellbeing, consider filing a complaint for modification in the probate and family court to adjust the custody and visitation arrangement on account of the other parent’s smoking habit.

Source: Action on Smoking and Health

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