Thursday, July 14, 2011

Tobacco Smoking and Child Custody in Divorce Cases

The health effects of secondhand smoke exposure are more pervasive than we previously thought, the scientific evidence is now indisputable: secondhand smoke is not a mere annoyance. It is a serious health hazard that can lead to disease and premature death in children and nonsmoking adults.

Surgeon General Richard H. Carmona, July of 2006

It has been observed that in case of partners seeking divorce, the welfare of their children is one of their primary concerns. This is particularly true if the children are less than 18 years of age. The court is empowered to enter temporary and final orders pertaining to child custody. Depending on the best interests of the child, the court might award sole custody to a single parent or joint custody to both.

The granting of joint custody is based on the ability of the parents to cooperate on issues pertaining to the child's benefit. In this sort of custody, the child has primary residence with any one parent. The other parent is given visitation rights.

Smoking and Child Custody

Rapidly expanding anti-smoking laws have help set the stage for this new element in child custody cases. Those affected range from truly dangerous parents who have smoked around children with asthma resulting in multiple emergency-room visits due to life threatening smoke induced attacks, to those who merely allow a family member to smoke in the presence of a healthy child.
  • In many cases around the country smoking parents have lost custody to non-smoking parents, and in some cases where both parents smoke, custody has been granted to a non-smoking relative or third party.
  • Some courts have issued orders requiring a smoking parent to smoke only in one room of the house or outside, and have made arrangements to periodically check up on parents to ensure compliance.
  • Many courts have prohibited smoking inside vehicles with children.
  • Courts consider the smoking habits of others who may have contact with the child, such as grandparents, friends, and “significant others” when making custody decisions
  • Courts do not favor parents who are trying to quit or who only quit after the smoking has become a custody issue, based on the belief that they are only quitting to gain custody and will resume smoking once they case is settled

Therefore, smoking is becoming an effective means for a nonsmoking parent to gain leverage in a divorce struggle. Courts have now recognized that parental smoking may be a deciding factor in custody disputes, and have issued orders prohibiting parental smoking in the presence of children. An upstate New York judge recently ordered Johnita DeMatteo to stop smoking in her home and in her car if she wanted to maintain her visitation rights with her thirteen year-old son, who lives with his father.

In a particular case in Georgia, the mother was addicted to smoking and after divorce it was found that her child had asthma. The court detected that this mother was smoking in the presence of her child. This implied that she had insufficient concern for her child. This reason was considered strong enough for a change in custody.

A majority of courts ponder over all the factors that affect the best interests of the child and then make a custody decision. It follows that only smoking would not be an adequate ground for alteration in custody. However, smoking would necessarily make an impact. When an ex spouse demonstrates that he/she has an intention of utilizing your smoking as a negative point in the custody decision, it is advisable that you do not smoke in the presence of the child.

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Raising the tobacco issue may help or hurt your case

The effects of exposure to secondhand smoke are a legitimate concern for parents, and the courts are sympathetic to this concern, particularly in cases involving children at risk due to asthma, allergies, or a history of respiratory illness. However, parents who obviously raise this issue merely as a way to attack the other parent, may inflame the court and will not appear to have the child’s best interest at heart.

Parents who quit smoking well in advance of a custody battle have a better chance of gaining custody or at least consideration free from the tobacco controversy. Those who continue to smoke can help their case by smoking only outdoors, and doing everything possible to maintain a smoke-free environment for the child. Even parents who do not smoke, but allow others to smoke in the presence of their children can be at a disadvantage, and should take steps immediately to reverse the situation.

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Approach Limitations

The case law throughout the country is clear that for a child's exposure to environmental tobacco smoke (ETS) to become custody issue, it must be shown that:
1) The child suffers from some medical problem; and
2) There must be evidence that this problem was caused or exacerbated by ETS.

In most cases, there are no restrictions on a parent's smoking and there is no substantial influence on a custody decision for a parent's smoking, while these two factors are not shown. Thus, notwithstanding the present attitudes against cigarette smoking, hypothetical harm to the child alone has not been sufficient to make ETS an issue in custody cases. However, the medical problem affecting the child need not be severe. It may be simply a persistent cough to become a strong argument in your custody case. It is more common for asthma, allergies, and respiratory infections to be established as the adverse health effects from exposure to ETS necessary to make smoking an issue in custody matters.

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