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Cigarette Smokers More Likely to Lose Custody

Anyone who smokes has probably heard many reasons to quit. From the negative impact on health to the high financial cost, often these reasons are the same ones heard time and time before, but now a new reason is gaining media attention: stop smoking or lose your children.

Indeed, parents considering divorce should strongly consider quitting the habit as courts are now including parental smoking as a relevant factor in custody determinations. Courts have even extended their reach beyond the custodial parent - especially when the child is dealing with health-related challenges - issuing orders requiring parents to forbid anyone from smoking near the child, including grandparents, family members, significant others and friends.

Child custody decisions are generally determined in two ways: independently or by the court. The first option results in an agreement by the parents during informal settlement negotiations or out of court by alternative dispute resolution proceedings like mediation. The second option requires court involvement to make the decision.

It is difficult to predict who will get custody when the decision is made by the court. Courts generally do, however, follow certain procedures, principles and considerations in their determinations. Most notable is use of the best interest of the child standard.

How Smoking Affects Child Custody Decisions

The best interest of the child standard is the backbone of custody case determinations. It grants the court with a considerable amount of discretion when determining which parent is granted custody of the child. Courts are allowed to consider any factor that they may deem relevant in determining the fitness of a parent. As a result, this standard weighs many considerations, including:

  • Character of each parent
  • Housing arrangements of each parent
  • Sexual conduct
  • Physical health of both parents and the child
  • Wishes of parents and child
  • Child's adjustment to the home, school and community
  • Mental well being of parents and child
  • Educational needs
  • Illegal, immoral or harmful religious or cultural beliefs

These considerations are generally accepted without much debate, but now some courts are also weighing whether a parent smokes cigarettes as a factor in his or her overall fitness as a parent.

Parental smoking was first considered a factor in child custody determinations in 1990 after the effects of second hand smoke were scientifically verified. Advocates of this consideration argue that the dangers of second hand smoke are well documented. The American Association of Matrimonial Lawyers notes that smoking related illnesses are responsible for the deaths of over 500,000 Americans every year and cost the country $75 billion in health care expenses. Additionally, 300,000 children annually develop lung or bronchial infections from exposure to tobacco smoke and over 5 million children are projected to die prematurely from smoking-related illnesses.

Advocates argue that the data supports the court's decision to consider smoking in custody determinations. Some courts, although rare, have even held smoking by parents to the same level of scrutiny as drug and alcohol abuse.

Guidelines for Parents Who Receive Custody

Although not all courts hold the consideration of cigarette smoking to a high level of scrutiny, it is wise to stop smoking before a custody dispute goes to court, but even that effort might not be enough. Sometimes courts are suspicious of parents who stop smoking at the time of the hearing and believe the parent will begin again once the case is over. In addition, courts have the power to modify any order if smoking resumes after the case is resolved.

If it is not possible to stop smoking, it is imperative to refrain from smoking in the presence of your children. If smoking is a necessity while the children are in your custody, do so outside and never in a vehicle.

Generally, courts do not put much weight on the negative impact of second-hand smoke on healthy children. However, it does receive greater judicial scrutiny if the child has a preexisting medical condition such as asthma or chronic bronchitis that worsens when exposed to cigarette smoke.

This was exemplified in a recent Texas case where a mother lost joint custody of her children when the non-smoking father established that the mother's smoking habit was exacerbating their child's health condition. Courts have also awarded primary custody in similar situations to the non-smoking parent even if the smoking parent was the primary caregiver for the children during the marriage.

Although critics argue that considering this legal activity as a negative factor in a child custody case unduly infringes on the parent's right to privacy and that allowing this step is the beginning of slippery slope towards monitoring a child's diet and video game habits, courts continue to use this factor in their determinations.


Smoking is only one of many considerations taken into account during a custody determination. Custody and visitation disputes are emotional and stressful. It is wise to seek the counsel of an experienced child custody attorney to discuss all the relevant factors courts may consider and to help you establish your fitness as a parent.

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Best of San Antonio | Profile series 2012