Child Custody, Time-Sharing, Secondhand Smoke and the “Best Interests” of the Child

For many years now, we‘ve been hearing about the harmful effects of secondhand smoke. But can secondhand smoke have effects on your child custody and time-sharing in New Mexico? It appears that more and more family court judges are taking this into account in custody and time-sharing decisions due to the potential harm to the children associated with second-hand smoke.

Custody and time-sharing decisions in New Mexico are made on the basis of the “best interest of the child.” Because smoking has potentially serious health consequences to the children, smoking in the presence of the children would clearly weigh against the children‘s best interests. The way it is dealt with will depend upon the particular judge and the response of the smoking parent.

Although the courts are unlikely to sever contact with a child simply due to smoking, there may be prohibitions on smoking around the children. There may be a few steps along the way, but continued violations of these prohibitions may very well result in contempt of court, ultimately resulting in restrictions or limitations on custody and time-sharing for the offending parent.

Secondhand Smoke Facts

Why are courts taking secondhand smoke so seriously? Back in 2006, the Surgeon General issued a report about secondhand smoke for the first time since the mid-1980s. As one might imagine, there‘s a lot more research available now about the harmful effects of cigarette smoke than existed in the 80‘s. Most remarkable, the Surgeon General‘s report suggested that secondhand smoke could actually cause lung cancer in adult non-smokers.

And the effects were even worse for children. There are numerous consequences to victims of secondhand smoke including severe respiratory infections like bronchitis and pneumonia, as well as asthma.

The consequences appear to be amplified for children. The fact is that second-hand smoke is a Class A carcinogen containing a number of cancer-causing substances, such as carbon monoxide, nicotine, tar, and ammonia. It has numerous potentially severe health consequences for children.

Children simply should not be exposed to secondhand smoke. This seems to be a given. So why wouldn‘t it be part of the calculation of the children‘s best interests in a custody and time-sharing determination?

How Might Smoking Affect Child Custody and Time-Sharing?

In taking a parent‘s smoking into account, when considering what‘s in the best interest of the child, courts can have a number of options:

  • Issue an order for the parent to avoid smoking immediately before and during time-sharing.
  • Revise a time-sharing agreement, restricting or limiting an uncooperative smoking parent‘s time with the child.
  • Hold a smoking parent in contempt for violations of court ordered smoking prohibitions.
  • Suspend custody and time-sharing for continued violations of court orders.

Court Orders Must be Obeyed!

Clearly, courts are not going to suspend a parent‘s rights to custody and time-sharing simply because of smoking. However, court orders regarding smoking around the child will be enforced just like any other court order.

Like violations of any court order, there are consequences to violating an order regarding smoking around the children. The consequences will most likely be escalating in nature based upon continued failure to cooperate and abide by the court orders. At some point, continued violations leave a judge no other option when viewed in light of protecting the children.

It is simply not a fight worth fighting for smokers. In the end, if the court says not to smoke around your children, then don‘t smoke around your children. And frankly, should a court really have to intervene to give this order?


Related Reading:
The “Best Interests Of The Child” in New Mexico Involves Many Factors
Changing the Parenting Plan in New Mexico

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