Written by attorney Alexandra Michele White

Second Hand Smoke Exposure and Child Custody

Second Hand Smoke Exposure and Child Custody

In July of 2006, Surgeon General Richard H. Carmona issued a report stating that "The health effects of secondhand smoke exposure are more pervasive than we previously thought, the scientific evidence is now indisputable: secondhand smoke is not a mere annoyance. It is a serious health hazard that can lead to disease and premature death in children and nonsmoking adults."

The effects of exposure to second hand smoke on children are undoubtedly harmful enough that it should be a factor in child custody disputes more often than it is. In his report titled The Health Consequences of Involuntary Exposure to Tobacco Smoke, Dr. Carmona outlines the following risks posed by second-hand smoke to children:

  • Secondhand smoke contains more than 250 chemicals known to be toxic or carcinogenic (cancer-causing), including formaldehyde, benzene, vinyl chloride, arsenic, ammonia, and hydrogen cyanide. Children who are exposed to secondhand smoke are inhaling many of the same cancer-causing substances and poisons as smokers
  • Because their bodies are developing, infants and young children are especially vulnerable to the poisons in secondhand smoke
  • Both babies whose mothers smoke while pregnant and babies who are exposed to secondhand smoke after birth are more likely to die from sudden infant death syndrome (SIDS) than babies who are not exposed to cigarette smoke
  • Mothers who are exposed to secondhand smoke while pregnant are more likely to have lower birth weight babies, which makes babies weaker and increases the risk for many health problems
  • Babies whose mothers smoke while pregnant or who are exposed to secondhand smoke after birth have weaker lungs than other babies, which increases the risk for many health problems
  • Secondhand smoke exposure causes acute lower respiratory infections such as bronchitis and pneumonia in infants and young children
  • Secondhand smoke exposure causes children who already have asthma to experience more frequent and severe attacks
  • Secondhand smoke exposure causes respiratory symptoms, including cough, phlegm, wheeze, and breathlessness, among school-aged children
  • Children exposed to secondhand smoke are at increased risk for ear infections and are more likely to need an operation to insert ear tubes for drainage
  • The Surgeon General has concluded that there is no risk-free level of secondhand smoke exposure. Even brief exposures can be harmful
  • On average, children are exposed to more secondhand smoke than nonsmoking adults
  • Based on levels of cotinine (a biological marker of secondhand smoke exposure), an estimated 22 million children aged 3-11 years and 18 million youth aged 12-19 years, were exposed to secondhand smoke in the United States in 2000
  • Children aged 3-11 years and youth aged 12-19 years are significantly more likely than adults to live in a household with at least one smoker
  • Children aged 3-11 years have cotinine levels more than twice as high as nonsmoking adults
  • Children who live in homes where smoking is allowed have higher cotinine levels than children who live in homes where smoking is not allowed

Colorado law applies the "best interest" standard when determining who should be the primary residential parent and what the parenting time schedule should be. A parent's smoking habits can and should be a factor in this decision. Parents face a myriad of problems when attempting to use the other parent's smoking habits as a factor in a child custody dispute. For example, although a smoker may claim that he or she is not smoking in the presence of the child, there is no easy way to determine whether he or she is being truthful-especially when the child is too young to talk. Often, the child is being exposed to second hand smoke by third parties such as roommates or new spouses and the court doesn't have the ability to order a third person not to smoke in the presence of a child. Perhaps these types of challenges explain why the use of parents' smoking habits in child custody disputes is relatively uncommon.

There are ways, however, to protect children from the other parent's smoking habits. Parents should consider inserting a provision prohibiting them from smoking or allowing third parties to smoke in the presence of the child. Either parent can request that the court enter this as an order in their case at any stage of litigation and courts routinely grant these requests. If one parent suspects that the other is not complying with a no-smoking order, a number of things can be done to obtain proof. Children who are exposed to cigarette smoke often carry the smell of cigarette smoke on their clothes. Although the aroma does not typically last long enough to get into court, an unbiased witness can verify that the child's clothes smell like smoke. A private investigator can be hired to determine whether the parent is exposing the child to cigarette smoke in public.

If your child is being exposed to second hand smoke from the other parent, it is important to know that you can take action because scientific data now clearly indicates that secondhand smoke is a health hazard to your children.

Additional resources provided by the author

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer