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Will using smoking as a factor in child custody decisions lead family courts to regulate what children can eat, etc.?

SpitkidA parent who smokes can pose a health risk to a child. Can anyone honestly dispute that premise? I know a parent’s smoking can be a factor in a custody decision because I have seen it happen. A child with some fairly serious respiratory issues would tend to come home from the non-custodial parent’s house with ailments ranging from the sniffles to bronchitis, and we had the medical records to prove it. I represented the custodial parent, obviously. The parent’s defense, in essense, was that no one was allowed to smoke in the house when the child was visiting. They smoked in the house when the child wasn’t around, and they smoked outside when the child was there. The parent did not seem to understand the tendency of the particulate matter put off by cigarettes to hang around an enclosed space long after the cigarette goes out. That would be what was making the child sick. The judge, in ruling in our favor, noted that the non-custodial parent did not seem to have much understanding of, or concern for, the child’s health.

It brings up a sort of interesring question: if courts can consider smoking as a factor in determining custody, how much further can they go in making decisions for the child’s health. Can one parent use the court to dictate everything the other parent feeds the child? Attorney Myra Fleischer, writing at the Washington Times last month, describes these concerns and pretty much dismisses them, which I think is correct:

Civil libertarians and parents may argue that the state may expand its intrusion into other family affairs if it is allowed to limit the right of a private citizen to smoke as a condition of being a parent. What if the child drinks too many sugary sodas, or plays violent video games? Most people bristle at the thought the state can monitor what a child eats, even though most people understand that a high fat, high sugar diet can lead to serious medical problems such as obesity and diabetes. If the state can control smoking by parents, couldn’t the state also control the type of diet a parent provides their children? It’s doubtful we will slide down this slippery slope, since the consequences of second hand smoke are well documented scientifically, giving the state an interest.

But this argument might as well be saved. Many courts have already decided that smoking should be a factor in custody decisions. Judge William F. Chinnock, visiting Judge to the Ohio Supreme Court, said in a law review article that a “considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court’s care fails those children whom the law has entrusted to its care.”

The difference between smoking and the examples cited is that smoking has no benefits whatsoever for a child. Video games are fun and fatty foods are yummy, and in moderation neither is necessarily harmful. Particularly in the case of video games, there is nowhere near the body of scientific evidence demonstrating harm like there is with smoking. Prohibitions on smoking are nothing new in society. Restaurants maintained non-smoking sections long before cities and states enacted smoking bans. To my knowledge, no one has created a non-fatty food section in a restaurant (i.e. a place where fatty foods are banned). I suppose it’s possible, but it’s hard to imagine and relatively easy to guard against.

If a parent is feeding a child nothing but hot dogs, soft drinks, and ice cream, then that is a specific problem a parent can take to a family judge. If a child, with either the permission or acquiescence of a parent, plays “Call of Duty” to the exclusion of school and other responsibilities, that is also a significant impact on the child’s welfare. Most states’ family codes empower family judges to make orders that protect the “best interest of the child.” This tends to be a maddeningly ill-defined phrase, but caselaw offers a guide to what a court can and cannot consider.

Considering smoking as a factor in child custody makes sense from a health standpoint. It makes sense from a practical standpoint because, unlike video games or fatty foods, it is not taking something away from a child that the child wants (and if the child wants cigarettes, there is another problem). Finally, existing law already allows it. This should not be a serious issue of civil liberties. Adults ought to have the right to abuse their own bodies as they see fit, for the most part. When science clearly shows a harm that is not mitigated by any benefit to a child, then the law begins to take an interest in a parent’s activities as they pertain to a specific child (bolded because this is not about trying to stop people from smoking, eating ice cream, etc. in a general sense).

The interesting part is when people start to debate what activities of the parents directly harm the children. I happen to think very few of a parent’s activities done well out of the presence of their children directly harm them (particularly ones that do not produce secondhand smoke), provided the parent does a good job of keeping them separate.

Photo credit: By Opa (Own work) [Public domain], via Wikimedia Commons.

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