By John C. Meehling   |   May 5th, 2012

Custody and Smoking Issues

custodyIf you smoke cigarettes, there’s a good chance that at some time in your past you’ve made a pact with a friend who also smoked that the two of you were going to try to quit smoking together, but you just couldn’t hold up your end of the deal.  In another attempt to quit smoking, maybe you’ve tried one of those “patches” but that didn’t do the trick either.  Perhaps you’ve seen those controversial commercials on T.V. where disfigured long-time smokers describe the major health problems that smoking has caused to their bodies, but today you remain a smoker.  Well, if you’re still a smoker, and you’ve tried repeatedly to give up the habit, the Family Law attorneys at Holzfaster, Cecil, McKnight & Mues may finally be able to provide you with the extra motivation you need to quit, especially if you are in a Custody dispute!  The new method that we are using to help our clients who are in Custody disputes to quit smoking is called the “You’re Going To Lose Custody of Your Kids If You Don’t Stop Smoking TODAY!” method.  This “method” that we are encouraging our clients to follow is growing in popularity because, more and more, in courts across Ohio as well as throughout the country, Judges are viewing smoking around children as a form of child abuse; which can very likely effect custody determinations.

Ohio Courts and Custody

Regardless of the county you’re in or whether you are fighting for full or joint custody, the Judge who decides your case will be asking, “What outcome will protect the safety and well-being of your child and what is in the child’s best interest?”  Judges in Ohio, like in most other states, consider all “relevant factors” in determining visitation and custody and no one factor is the end all – instead, it is more of a balancing test.  For example, courts look at factors such as stability in the home, the geographic location of the parties, whether a parent has any prior domestic violence issues, each parent’s ability to provide for the basic needs of the child, the child’s progress in school, and the dental and medical condition of a child.  A new trend that our Family Law attorneys have witnessed over the last few years, though, involves courts now factoring in custody determinations whether parents, or other family members, smoke in the home or car when the children are present.

Everyone knows that secondhand smoke has serious health consequences for non-smokers.  That’s why Ohioans voted to prohibit smoking in restaurants and bars a few years ago and that’s why there are now websites with names such as “Kids Involuntarily Inhaling Secondhand Smoke” (KIISS).  Children often cannot remove themselves from situations where the adults who care for them are smoking.  Because their bodies are still developing and because children have higher breathing rates, smoking around young people can cause more serious problems than it does around adults.  Secondhand smoke has been linked to increased incidences and severity of asthma, bronchitis, pneumonia, and respiratory infections.  When infants are exposed to secondhand smoke, they die from Sudden Infant Death Syndrome (SIDS) at a rate of up to 5 times that of infants who are not exposed to smoke.  Plus, children exposed to secondhand smoke have a greater chance of developing cancer as an adult.

Judges, Guardian ad Litems, and Children’s Services personnel know these statistics which is why there has been an increase of child custody decisions around the country that included an examination of whether one or both parents smoked, before Custody was ultimately awarded.  Ohio courts have said that, “a family law court that fails to issue a court order restraining persons from smoking in the presence of children within its care is failing the children whom the law has entrusted to its care.” In re Julie Anne,121 Ohio Misc.2d 20, 50 (Lake Co., Aug. 27, 2002, revised Oct. 15, 2002).

In some states, parents who smoke have had their visitation rights reduced and courts have even ordered that some parents cannot smoke inside for between 24-48 hours before a child arrives to stay.  Parents in other states have even lost custody because they smoked in the presence of their child. A mother in Georgia lost custody of her child when she continued to smoke inside the home after the child was diagnosed with asthma. Daniel v. Daniel, 509 S.E.2d 117, 120 (Ga. Ct. App., Nov. 10, 1998).  Some courts have restricted smoking in a home to just one room or to outside, and they have probation officers verify restrictions are being followed.

Since Ohio Courts are considering the smoking habits of parents in custody and visitation determinations like never before, we advise our clients who smoke to, at the very least, never smoke inside where their children are, to never smoke in a vehicle, and to never allow others to smoke around their child.

If you’re a smoker and you are in, or plan on being in, a Custody battle in the near future, the Family Law attorneys at HCM&M strongly suggest that you view your Custody battle as an opportunity to quit smoking.  Remember that Custody disputes are often decided by a few minor issues that ring loud with the Judge.  Your ability to provide a safe and healthy environment in regards to smoking, when the other parent cannot, may be just the issue that sways your custody case with the Judge. Don’t let your chance to win Custody go up in smoke just because you smoke cigarettes!

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About The Author: John C. Meehling
Attorney John C. Meehling is a Family Law Attorney from Dayton, Ohio, and contributor to the Ohio Family Law Blog. Attorney Meehling recently joined the Dayton law firm of Holzfaster, Cecil, McKnight & Mues on November. 1, 2010.

Custody and Smoking Issues
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