The health risks of second hand smoke are well established. Nearly 50 million Americans smoke, exposing countless adults and children to high levels of toxins in second hand smoke. Children exposed to second hand smoke, particularly in confined spaces, are at greater risk of developing health problems, including poor lung function and respiratory infections, asthma, heart disease and lung cancer.
Many state governments have taken steps to address the dangers of second hand tobacco smoke to children and in the workplace, and some state courts have formally recognized the health risks of second hand smoke. Massachusetts passed a Smoke-free Workplace Law and provides resources for filing complaints about possible violations. Family Court judges in the state are among the quickest to punish smoking parents when ruling on child custody and parenting plan disputes. In Maryland, some senators are struggling to get support for a bill banning smoking in a car in the presence of a child younger than eight years. However, opponents have expressed concerns about government overreaching into private behavior.
Massachusetts courts have considered whether a parent smokes when ruing on child custody and parenting plans. For example, in 1993, a Norfolk County couple agreed in their final orders that neither would smoke the presence of the children.
A 1997 Suffolk County Family Court judge issued a temporary restraining order that prohibited both parents from smoking cigarettes in the house or cars when the children were present.
Other relatives have been affected by the growing concern over second-hand smoke. In Hamden County in 2003, paternal grandparents were removed as guardians of a child and were awarded visitation only if they did not smoke in front of the child or permit anyone else to do so.
Smoking cigarettes and tobacco in general long enjoyed a certain status as fashionable or cool in American culture, thanks in no small part to decades of Hollywood stars and rock musicians smoking on TV, in movies and music videos. While smoking marijuana, meth and crack have been stigmatized as "using drugs," tobacco somehow flew above the radar and maintained its quasi-acceptability. However, with a growing understanding of the far-reaching health consequences of second hand smoke - especially to young children - smoking tobacco has fallen from grace in recent years.
Given the rapidly declining view of smoking held by family courts and judges, parents and others who smoke and who are going through a child custody dispute may want to consider picking up a pack of nicotine gum next time they're at the drug store.
Parents who have become embroiled in a custody or visitation dispute involving smoking should consult a knowledgeable family law attorney.