Smokers May Butt Out

Courts have increasing been asked to consider the presence of a cigarette smoker in a child’s home — be it a parent, stepparent, or third party — in determining the best interest of the child in custody and visitation cases.

These cases typically involve situations where what is called “secondhand” smoke in the home poses a health hazard to children who have respiratory problems.

Courts have said that presence of secondhand smoke is one of many factors that may be considered in custody cases. In an 1999 Alabama case, an appeals court upheld the decision a lower court to transfer physical custody of a child to the father because his mother continued to smoke in the child’s presence despite the child’s history of asthma and severe respiratory infections.

Courts have also ordered parents to refrain from smoking in the presence of their children. In a 2002 Ohio case, In re Julie Anne, the court heard extensive evidence that the custodial mother and her live-in boyfriend exposed a child who had no pre-existing health problems that would be worsened by secondhand smoke. On its own motion, the court ordered that both the mother and the father not to smoke or allow “anyone else to smoke in the presence of the child.” In this case, the court found three separate authorities for its order: 1) the doctrine of parens patriae, which is the idea of the state as parent; 2) the best interests of the child; and 3) the United States Supreme Court. “[A] smoker has a right to privacy to treat his health in whatever manner he chooses, but this right does not include the right to inflict health-destructive secondhand smoke upon other persons, especially children who have no choice in the matter. A man’s home is his castle, but no one is allowed to hurt little children — even in his castle,” the court stated.

Courts now consider the smoking habits of parents in determining the best interest of the children, but at the same time have said that the mere fact that a parent smokes is not determinative. Instead the courts have ordered parents not to smoke in the presence of the children.

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