Cigarette Smoking An Issue When Considering Custody And Parenting Time Arrangements

With regard to secondhand smoke, the Center for Disease Control and Prevention (CDC) has found that the only way to fully protect nonsmokers is to eliminate smoking in homes, work places and public places. Separating smokers from non-smokers, opening windows or using air filters does not prevent individuals from breathing secondhand smoke. In children, secondhand smoke causes ear infections, more frequent and severe asthma attacks, respiratory symptoms, respiratory infections and an increased risk of sudden infant death syndrome (SIDS).

The issue of second hand smoke or Environmental Tobacco Smoke (ETS) and consideration of its impact on children in the context of a custody case was first presented in Unger v. Unger[i]. Therein, one of the parents was a heavy smoker and the other a non-smoker. The parties ultimately resolved their custody issues by way of a Consent Order that restrained the parties from allowing the smoking of tobacco in the presence of the children in any location and any enclosed areas including automobiles.

As a result of the children’s health issues the issue was ultimately revisited with competing motions. The Court modified the custody arrangement to provide that neither party smoke in their homes or cars within ten hours of having the children.[ii] The Court further ordered that the psychologist who had originally conducted the custody evaluation of the parties, to re-evaluate the custodial arrangement specifically weighing ETS as a health and safety factor as she would weigh any other health and safety factor, an issue that was not previously considered by the evaluator.

Prior to the decision in Unger, the Legislature found and declared that “the resolution of the conflict between the right of the smoker to smoke and the right of nonsmokers to breathe clean air involves a determination of when and where rather than whether a smoker may legally smoke.” [iii] Further, the court in Shimp v. N.J. Bell Telephone Co. found that, “[T]he evidence is clear and overwhelming…”the right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or her …”[iv]

Legislation, seeking to implement a complete ban on smoking in automobiles, transporting minors age 16 and under, is now pending.[v] In the event of a violation, the driver would be fined. If passed, New Jersey would be the 8th State to pass such a law.[vi] The issues regarding where and when a parent can smoke, when they have children in their custody, is an important consideration that you should speak to a family law attorney about when resolving your custody and parenting time arrangements.

Posted by Lee Ann Chiacchio, Esq.

[i] 274 N.J. Super 532 (Ch. Div. 1994)

[ii] This time frame was established based upon the testimony of a Dr. that smoke dissipates within ten hours in a ventilated area.

[iii] N.J.S.A. 26:3D-38; N.J.S.A. 26:3D-46; N.J.S.A.26:3E-7.

[iv] 145 N.J. Super 516 (Ch. Div. 1976).

[v] Senate Bill 2883

[vi] Other states that have similar laws include Arkansas, California, Louisiana, Maine, Oregon, Utah and Vermont. Puerto Rico also has a ban.