Secondhand Smoke and the Family Courts: The Role of Smoke Exposure in Custody and Visitation Decisions

Family courts address a multitude of issues when determining the rules of a child’s life after his or her parents divorce or otherwise seek court intervention on custody and visitation arrangements. Most states have enacted statutes setting parameters for custody and visitation determinations. However, the nature of these cases requires that trial courts retain significant discretion in weighing the various factors and crafting orders reflecting the best interests of the children before them. With the abundance of scientific evidence describing the dangers of exposure to secondhand smoke or environmental tobacco smoke (secondhand smoke), particularly for children, and the increasing public awareness and understanding of these dangers, the issue of a child’s exposure to secondhand smoke is being raised more frequently in custody and visitation cases. Although there is nothing novel about a family court considering factors that affect a child’s health, the impact that secondhand smoke has on children generally and on a particular child in a custody proceeding are relatively new issues for most trial courts and family law attorneys. This Synopsis is designed to assist courts, practitioners and lay people who are faced with a custody or visitation proceeding in which a child’s exposure to secondhand smoke has been or may be raised. Section I presents a summary of the adverse health effects suffered by children who are exposed to secondhand smoke. Section II provides a general overview of the process by which family courts draft custody and visitation orders, and how this process permits consideration of secondhand smoke exposure. Section III discusses specific cases that involve the use of secondhand smoke exposure as a factor in custody or visitation decisions. Cases regarding children who are particularly susceptible to secondhand smoke exposure, as well as those concerning healthy children, are considered. Section IV discusses the use of judicial notice to introduce scientific data regarding the adverse health effects of secondhand smoke exposure. Section V explains why the consideration of parental smoking in custody and visitation disputes does not infringe upon the right to parental autonomy.