Commentators on child custody sometimes cite a Georgia case from 1998 to show the changing parameters of factors that are being judicially considered in custody matters.
In that case, a woman was awarded full custody of her daughter following divorce. The woman and her boyfriend smoked, and the young girl subsequently developed asthma, necessitating medical attention on several occasions. A trial court found that the couple's continued smoking implied a lack of sufficient concern for the child. An appellate court agreed, and the girl's father was awarded custody.
A decade-plus later, smoking is much more recognized as a factor to be commonly considered in custody decisions. In fact, a judge in a recent law article states the "inescapable conclusion" that a court anywhere in the United States that fails to issue orders forbidding smoking in the presence of children under the court's care "fails those children whom the law has entrusted to its care."
Indeed, that view seems to have picked up steam in recent years. In cases from at least 18 states, courts have ruled that smoking in the presence of a child should be a factor in determining custody. Court orders in many thousands of cases across the country have banned smoking around children, and in many more instances courts have considered the smoking habits of persons other than the parents (grandparents, caregivers, friends and so forth) who will likely have substantial contact with a child or children.
Critics, of course, can argue the slippery slope in this, noting that, if smoking is a factor in custody matters, what will be next? Swearing around a child? Watching too much television? Drinking too much soda?
In fact, those things have been argued in court, and have factored in on various occasions. Smoking, though, seems particularly well entrenched as a factor that courts now weigh routinely among others in custody determinations.
Source: The Washington Times, "Smokers losing child custody cases a growing trend," Myra Fleischer, Feb. 21, 2012