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:
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.