Hazards of smoking well-known to family court judges making custody decisions

Family courts around Illinois - and around the country - have been considering an additional, novel factor when making child custody and parenting time (visitation) determinations lately: the child's exposure (past, current or future) to secondhand smoke. While the dangers of smoking have been public knowledge for decades, the movement to have secondhand smoke considered in custody cases is relatively new.

The advent of free, online medical education sites like WebMD and 24-hour news networks publicizing mass tort cases against tobacco companies means that parents, attorneys and judges alike have more information than ever before about the invasive, harmful effects of smoke exposure.

Why is smoking an issue?

In a word: health. Secondhand smoke exposure has a greater impact on a child's health and still-growing respiratory system than nearly any other substance. Tobacco smoke in particular is especially hazardous, containing dozens of different chemicals, many of which are known carcinogens. Smoke is most problematic for children with preexisting medical conditions, aggravating existing symptoms and creating new issues as well.

Common smoke-related illnesses seen in children are:

  • Ear infections (often chronic, and often leading to the insertion of tubes in the ears to release pressure)
  • Chronic coughing
  • Asthma
  • Respiratory infections
  • Increased risk of SIDS (sudden infant death syndrome)
  • Bronchitis
  • Allergic symptoms like runny nose, congestion or itchy eyes

How do judges weigh smoking?

The extent to which smoking will play a part in a judge's custody decision itself depends on a number of factors. For example, judges might weigh the smoking of a parent much greater than the smoking habits of someone (like a family friend or distant relative) that who won't be spending much time with the child on a regular basis. Some judges will also consider the nature of the smoker's habit, being less concerned about a parent who smokes one pack of cigarettes a week versus one who smokes a pack a day.

A judge's desire to ensure that the child is protected from the harmful effects of secondhand smoke (sometimes known as "environmental tobacco smoke" or ETS) will also vary from case to case and from court to court. Some judges might expressly prohibit smoking around the child or in vehicles that the child travels in, while some might be so concerned as to make any smokers shower and change before having contact with the child.

Regardless of how smoking can affect a contested custody case depends on a number of different factors, and is largely dependent on the unique circumstances of a family's situation. If you are involved - or you anticipate being involved - in a contested child custody matter where secondhand smoking is an issue, an experienced family law attorney can help you present the best possible case to the judge in favor of custody.