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Family Life

Secondhand Smoke and Child Custody

By: Fernando Urrego, MD, FAAP

Many parents know that smoking cigarettes damages their health. What they might not realize is that, in family court cases, the habit also can hurt their chances for custody of their kids.

What's in the Child's Best Interest?

Regardless of the state you live 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?"

This involves many factors—including anything that might affect a child's health. In a rising number of custody cases, courts are also factoring in whether parents, or other family members smoke in the home or car when children are present.

Smoke-Filled Risk

Secondhand smoke contains about 4,000 different chemicals, many of which can cause cancer. It is proven to increase short- and long-term health risks in children exposed to it, including:

  • Asthma

  • Respiratory infections (like bronchitis and pneumonia)

  • Chronic cough and other lung problems

  • Ear infections

  • Sudden infant death syndrome (SIDS) (for babies younger than 1 year)

  • Children whose parents smoke also are more likely to be involved in fires that start when they play with matches, lighters or lit cigarettes accidentally left within their reach.

Is Smoking Around Kids Child Abuse?

According to federal law, child abuse is "an act or failure to act which presents an imminent risk of serious harm." Custody attorneys may argue that knowingly and repeatedly exposing a child to secondhand smoke is a form of child abuse and reason to limit custody or visitation rights—especially if a child has a health condition such as asthma.

Whether exposure to secondhand smoke is child abuse is the source of much debate, and custody cases may include a range of pro and con arguments:

  • Addiction, or criminal act? Some judges may emphasize the addictive power of nicotine in cigarettes. They may rule that, like other chronic illnesses, nicotine dependence is a disease, and the parent who smokes should be allowed to undergo treatment without judgment. The other side of the argument assumes a "moral failure" by the parent who exposes the child to a dangerous situation. From this point of view, exposing a child to secondhand smoke can be considered a criminal act.

  • Privacy rights. Complicating the issue is legal debate over a parent's privacy right, not only to smoke in their own home, but to raise his or her child without intervention from the state. The court will determine if the parent's rights outweigh the best interest of the child.

Further Clouding the Issue…

Courts considering a child's exposure to secondhand smoke in a custody or visitation case look to the state's Uniform Marriage and Divorce Act for guidance. Exposure to secondhand smoke is typically considered as part of a "health" or "safety" factor in the custody proceedings.

Some of the situations that can become sticking points in custody cases:

  • Sick and sicker. Non-smoking caregivers seeking to challenge custody or visitation rights can make the case that a child's respiratory illnesses worsen when visiting a parent smokes and may cause a life-threatening asthma attack, for example.

    • In Mitchell v. Mitchell, a Tennessee Court of Appeals judge awarded custody of a 6 -year-old boy with asthma to his non-smoking father. The mother and grandmother smoked near the child despite being advised by a doctor that the smoke would aggravate the child's asthma.

    • In Louisiana's Badeaux v. Badeaux, a judge limited a smoking father's visitation rights after his son developed asthma and repeated upper respiratory infections.

  • Long-term risk. Even if a child has no current illness, judges may consider evidence that secondhand smoke can affect his or her health later or in other ways. Teens who have been exposed to secondhand smoke perform worse on lung function tests, for example. Exposure also increases the chance cancer or other diseases in adulthood. And studies also show the more time a child is exposed to a parent who is addicted to smoking, the more likely the child will take up cigarettes and become a heavy smoker themselves.

  • When both parents smoke. In some cases, when both parents smoke, the judge has granted custody to a non-smoking relative or other caregiver.

What Parents Can Do

Take steps that will show a judge you are working to protect your child from the dangers of secondhand smoke:

  • If you smoke, quit. Judges often take into consideration whether the smoking parent is willing to stop smoking. Because nicotine in cigarettes is addictive and quitting smoking can be difficult, however, judges may question whether you'll follow through. To increase the odds that smoking won't hurt your custody chances, take steps to break the habit well before the case begins.

  • Start a home and car smoking ban. If you haven't yet been able to quit, or are unwilling to, make it a rule to never smoke around your child, and make sure their home and cars are completely smoke-free. Chemicals from tobacco smoke and vapor settle on surfaces where children play, eat and sleep, exposing them even when cigarettes are not lit.

  • Friends and family. Judges consider whether other people in child's life, such as grandparents and friends, will expose the child to secondhand smoke. Make sure anyone who you let spend time with your child doesn't smoke around them or in spaces they use.


Custody cases, especially in divorce, are difficult times for both parents and children. 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!

Additional Information from

About Dr. Urrego:

Fernando Urrego, MD, FAAP, is a pediatric pulmonologist in New Orleans, Louisiana and is affiliated with Ochsner Health System. Within the American Academy of Pediatrics, Dr. Urrego is a member of both the Section on Pediatric Pulmonology & Sleep Medicine and the Section on Tobacco Control.

Last Updated
Section on Tobacco Control (Copyright © 2017 American Academy of Pediatrics)
The information contained on this Web site should not be used as a substitute for the medical care and advice of your pediatrician. There may be variations in treatment that your pediatrician may recommend based on individual facts and circumstances.
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