In a rush to prevent what one pundit called 'the most prevalent form of child abuse', at least fifteen state courts, including California, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Tennessee and Texas, have held that it is appropriate to consider whether a parent smokes around a child in determining whether or not they should be awarded custody.
Most cases have been resolved with the court entering an order restricting the areas where a parent may smoke when a child is present, the use of air filters or aerosol fresheners when necessary, a prohibition against smoking in their automobile when the child is present, the request of seating in the non-smoking sections of public places, or a ban on smoking in the home or car for as long as two days prior to the child's arrival.
In cases where parents refuse to agree, or violate a court's no-smoking order, parents can and have had their visitation rights suspended or lost custody.
In addition to these restraints, a skilled attorney may suggest the entry of a court order wherein neither party discusses the issue of smoking directly with the child and both parents are restrained from performing any acts to disparage the other party in the eyes of the child; but if the child unilaterally or unsolicitedly expresses a reservation during visitation or about visitation with the smoking parent, or the smoking of friends who associate with the parent, that parent shall endeavor to discuss the issue with the child or seek counseling with the child to resolve the matter, at the shared expense of both parents.
A more disturbing problem for smoking parents may be that in our society today it is increasingly possible for others to also be concerned with the welfare of our children. It is not uncommon for doctors, school nurses, teachers, grandparents and neighbors to file a complaint of suspected child abuse, neglect or endangerment against a parent where smoking in the presence of a child is perceived to create an alleged health risk.
As of January 1998, at least three (3) parents have lost custody of children because of complaints from outside the home.
This generally occurs where the child has asthma, hay fever, allergies or other conditions which make them especially susceptible to tobacco smoke. Even recurrent ear infections have provided the basis for such complaints.
Because many of these complainants are mandatory reporters - those who have to report for the welfare of children and general good of society - many smoking parents may find that they are presumed guilty of a crime against their child without the right to confront their accuser.
A skilled practitioner in juvenile or family law will have the right to review these anonymous allegations, however, and it is strongly suggested that if the Department of Children and Family Services (DCFS) serves you with a complaint, one's first inclination should be to call an attorney to expedite a process which may otherwise require countless hours of attendance in court, psychiatrist's offices and 'parenting skills' classes before you and your child can ever resume what will hopefully be a 'normal' life together again.