Second hand Smoke and Child Custody

Child passive smoking

Secondhand smoke, also called environmental tobacco smoke (ETS), can have an impact on child custody decisions. The possible consequences of parental smoking in a custody case can range from termination of parental rights or a change of custody and restrictions on visitation to the smoking parent receiving custody with smoking restrictions and a requirement for follow up reports to the court.

First, here are a few facts about secondhand smoke that courts have already taken judicial notice of.

  • Secondhand smoke consists of mainstream smoke exhaled from a smoker’s lungs and sidestream smoke that comes directly from the burning tobacco.

  • Secondhand smoke comes from all tobacco products, including pipe tobacco and cigars.

  • Secondhand smoke is a Class A carcinogen. That puts it in a class with 15 other substances, including asbestos, radon and benzene, that are known to cause cancer in human beings.

  • Secondhand smoke contains 4,000 substances with more than 40 of them known to cause cancer and many of them known to be strong irritants to human tissues and organs. Examples of these substances are: carbon monoxide (CO), ammonia, nicotine, hydrogen cyanide, benzo[a]pyrene, dimethylnitrosamine, tar, formaldehyde, and beta-naphthylamine.

  • The chemicals in secondhand smoke damage cell DNA.

Here are a few facts about how involuntary smoking, or passive smoking, effects children:

  • Children, especially infants and toddlers, exposed to secondhand smoke have more lower respiratory infections, such as bronchitis and pneumonia, and are more likely to be hospitalized during the first two years of their lives for a serious lung problem.

  • There is a link between secondhand smoke and infants who died from Sudden Infant Death Syndrome (SIDS).

  • Children exposed to secondhand smoke are more likely to have reduced lung functioning and symptoms like coughing, sneezing, excess phlegm, wheezing, stuffy nose, headaches, sore throat, eye irritation, hoarseness, dizziness, nausea, loss of appetite, lack of energy, or fussiness.

  • Children exposed to secondhand smoke are more prone to middle ear infections. Passive smoking can lead to a buildup of fluid in the middle ear as a result of irritation and swelling of the Eustachian tubes connecting the middle ear and nasal passages.

  • The greater the amount of parental smoking the more frequently children of those parents have respiratory infections.

  • In families where both parents smoke, the children have significantly more respiratory infections.

  • Children exposed to passive smoking have significantly reduced pulmonary functioning and their lung growth is hindered. Since they subsequently fail to reach their optimum lung growth, they are more likely to have pulmonary health problems as adults.

  • Maternal smoking relates more closely to childhood respiratory infection than paternal smoking.

  • Children exposed to secondhand smoke are more likely to develop asthma. For those children who already have asthma, exposure to secondhand smoke increases the frequency and strength of a child’s asthma attacks.

  • Children exposed to parental smoking are more likely to suffer accidental cigarette burns and hazards from fires set by children playing with matches and butane lighters or parents leaving burning cigarettes unattended.

  • Adults, who as children were exposed to significant levels of secondhand smoke, are more likely to have lung cancer, heart disease and cataracts.

  • Children exposed to parental smoking are more prone to becoming smokers.

  • Children exposed to parental smoking have emotional and psychological concerns about the smoking parent’s health.

Facts about secondhand smoke and smoking for pregnant women:

  • Women who smoke during pregnancy or who are repeatedly exposed to secondhand smoke are more likely to have a miscarriage.

  • Babies, whose mothers smoke or who are repeatedly exposed to secondhand smoke, are more likely to be born stillborn, premature and not fully developed, or with a lower birth weight.

  • Infants whose mothers smoked during the pregnancy or were repeatedly exposed to secondhand smoke are more prone to Sudden Infant Death Syndrome (SIDS).

  • Children, whose mothers smoked during the pregnancy or were repeatedly exposed to secondhand smoke are more likely to suffer from some childhood cancers.

In a custody fight, courts across the country can, and have, done the following:

  • Determined that the risks to the child’s health in exposure to secondhand smoke from parental smoking are one factor among several others that should be used when determining what custody arrangement is in the best interests of a child.

  • Taken judicial notice of the effects of secondhand smoke on children.

  • Ordered the smoking parent to restrict his or her smoking when the children are present or before exercising a period of custody.

  • Transferred custody from the parent who smokes to the nonsmoker parent.

  • Taken custody from both parents and awarded it to a relative or other third party.

  • Retained jurisdiction for a period of months after entering a custody order to check on parental compliance with orders.

  • Discounted the claims or efforts of a parent who is trying to quit smoking. The reasoning is that the parent may be more motivated by a desire to win the custody fight than a genuine concern for the health and welfare of the child.

  • The smoking habits of grandparents, significant others and any other person who has frequent contact with the child may be a factor in a child custody decision.

One note of caution about parents who smoke and willfully and knowingly expose their children to secondhand smoke:

  • The language and definitions used in the child abuse and neglect laws of some states may be interpreted so that parental smoking around children is considered a form of child abuse. It is possible that professionals, like psychologists, pediatricians or certain care-givers, may be required to report a child suffering from symptoms caused by exposure to secondhand smoke to the appropriate child protection agencies.

If you smoke, here are some steps you can take to reduce the effects of your secondhand smoke on your children. They could also decrease the detrimental effect your smoking could have on the outcome in a divorce, modification, or termination of your parental rights action:

  • Always smoke outside and wait a while after you smoke a cigarette, cigar or pipe before entering your home.

  • If you must smoke in your home, restrict it to one room away from your children. Always have a window open for cross ventilation and use a good air cleaner with a clean air filter.

  • Never smoke in a car when your children are present. Smoking with a window open or cracked is not sufficient.

  • Take affirmative steps to avoid places where your children will be exposed to secondhand smoke.

  • Quit smoking. If you need help to quit, visit

For more information and the sources for the facts in this article, see reports issued by the Centers for Disease Control, The Environmental Protection Agency, The American Academy of Pediatricians, and the American Lung Association.

Legal resources can be obtained from the Action on Smoking and Health (ASH), the St. Louis University Public Law Review, and the Marquette Law Review among several others.