Loss of Control Over Private Matters in Child Custody Cases May Rile Smokers (And Other Parents)

It is no secret that divorce is a difficult time, and it is widely known that child custody battles can be life-altering experiences–not always in a good way. More and more, courts have intruded into otherwise personal and family affairs in order to make child custody decisions. For example, a recent Washington Times article discussed the growing trend of family law courts considering smoking a factor in child custody cases.

The investigation cites a survey by the group Action on Smoking and Health, dealing with custody issues and tobacco use. The survey found no court has ruled that a parent‘s use of tobacco should not be taken into account when deciding child custody. It also found that courts in 18 states have already ruled that tobacco use of a parent or family member should be considered as a factor in child custody cases. Other courts have prohibited smoking in a child‘s presence or even 24 to 48 hours before the child arrives. Courts have also modified custody arrangements because a parent exposes the child to tobacco smoke. They have taken into account not only parental smoking but smoking among other family members and friends that may expose the child to secondhand smoke.

The Times article also discusses how many who oppose this trend warn that considering a parent‘s smoking habits will pave the way for further court intrusion into private matters. Some fear that if the court is regulating a parent‘s smoking habits by citing the dangers to the child‘s health, it may go on to regulate other private matters such as what a parent feeds their child and other private parenting decisions. Other critics question whether the courts should be allowed to limit a person‘s freedom of choice in order to see their children.

When determining child custody, a court looks at “the best interests of the child.” This standard includes the child‘s medical health and well being. The risks of tobacco use and secondhand smoke, especially to a child‘s health, are widely documented. In the wake of strong anti-smoking campaigns, it is only natural that courts are now considering a child‘s exposure to secondhand smoke as part of its “best interests” considerations. This is especially true if the child already has respiratory problems, but has been held to be relevant in a wide range of cases, even when the child shows no sign of reaction to exposure.

It is already evident that parents have begun to change their habits in response to this trend. Many parents have quit smoking when faced with a possible child custody dispute. It is not clear that quitting may help, however, since the opposing parent may argue that the other will just resume smoking after the child custody matter is settled. If a parent is unable to quit, he or she may be well served by only smoking outdoors and never around their children or in a vehicle. Parents may also help their custody case by not allowing others to smoke around their children.

In any event, this trend reflects courts‘ increasing control over the personal decisions of parents in child custody disputes. Today‘s parents are beginning to realize that they must give up control of many previously private matters when they become involved in a dispute over child custody. These are the kinds of issues that should be addressed with an experienced divorce attorney so that you know what to expect in a divorce and a contested child custody case.

Collins & Collins, P.C.
Albuquerque Attorneys


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