Smoking Hazardous For Divorcing Parents Increasingly, Judges Favor Nonsmoking Parent In Granting Custody

If you can imagine yourself in a battle for custody of your children, divorce lawyer Alan Scheinkman has some advice: Don’t smoke.

Judges in divorce cases increasingly are considering smoking as a factor in deciding where to put the kids - especially when the children have asthma or allergies.

“If you were a prudent parent on the receiving end of a custody petition and you really cared about the kids and retaining custody, you’d say, ‘I’m quitting,”’ Scheinkman says.

The issue has spilled over into the nation’s family courts as the public becomes increasingly aware of the dangers of cigarettes and secondhand smoke. It will be the topic of a panel discussion today at Pace University Law School.

The nearly universal “best interests of the child” standard used in custody cases means parties can raise - and judges can consider - almost any issue. And if a judge is so inclined, he can see smoking as a negative in two ways: dirtying the child’s air and showing poor character.

“The parent who’s willing to smoke in the same room with an asthmatic child shows more self-centeredness and less selfless regard for the child than one who won’t,” says Ann Oldfather, a divorce lawyer in Louisville, Ky.

Obviously, smoking is not always going to make a difference.

“If you had a parent who is beating the other parent and the child, you wouldn’t say, ‘Well, because the victim is a smoker, we’re going to award custody to the abusing parent,”’ Scheinkman says. But in cases where the parents are equal in nearly all other respects, smoking could prove to be the decisive factor.

In 1990, a Tennessee court awarded custody of an asthmatic boy to his father because his mother smoked in front of the child, even in an automobile. Similar rulings have come in Connecticut, Delaware, Minnesota and New Jersey, all since 1993.

Some judges, perhaps realizing that it can be hard to quit smoking, have decided not to switch custody but to impose smoking restrictions on the parent. In Nassau County, N.Y., a judge ruled that a woman could smoke in only one room of the house, and only if the children weren’t present.

In Knox County, Tenn., the Circuit Court has adopted a rule for all custody cases, and not just those in which the child has a health problem: “If children are exposed to smoke, it will be strong evidence that the exposing parent does not take good care of them.”

That rule led last year to a criminal contempt conviction - and a loss of all visitation rights - for a father who smoked during his time with his daughter.

Merril Sobie, a Pace Law professor, a specialist in children’s law and a pipe smoker, believes that without evidence a child is being harmed, “I don’t think smoking should be relevant at all.”

“Should we deny custody if the parent feeds the child junk food? A parent that lets Johnny play touch football?” he asks. “I’m also very leery of the state intervening in parental discretion.”

Similarly, Walker Merriman of the Tobacco Institute, an industry group, says that unless it can be shown that the child could suffer harm, “it’s very troublesome for courts to undertake fine-grain scrutiny and engage in social engineering.”

So far, there is no clear national standard on how to deal with smoking around children, says Sobie: “It’s very much a child of the ‘90s and very much undeveloped.”

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