Child taken away from parents for smoking (A Guide to avoid it)

In this article, we will talk about how a child can be taken away from the parents because of smoking, the effects of second and thirdhand smoke, and the ill effects of smoking to the child.

child taken away from parents for smoking

A child can be taken away from parents due to smoking, many court records revealed. Approximately two in five children in the United States are exposed to second-hand smoke. Parents know that smoking is detrimental to health. And much more it affects the children of the smoking parents. Second-hand smoke has about 4,000 different harmful chemicals, the majority of which can cause cancer.

Child custody goes up in smoke:

According to a scientific research, evidence showed that exposure to secondhand smoke is not only an irritant, but in fact fatal.  It causes multiple diseases in children like asthma, pneumonia, several respiratory diseases and thousands of unnecessary hospitalizations.  Not only can the child be taken away from the parents, but it can harm the child’s overall health.

A court has the ability to make decisions on visitation and custody rights aimed at protecting children from the dangers of secondhand smoke based on the following legal provisions:

  • The doctrine of parens patriae which literally means “father of people” or the power of the state to assume the rights of the natural parents of any child who needs protection. Protecting those who cannot protect or speak for themselves. This is particularly for the case of children or juvenile family court.
    • The best interests of the child, or the standard in making child placement decisions based on the best interest’s determination for the child. Although it may vary on different states and jurisdiction, the following determinants such as the age and gender of the child, physical and mental health of the parents, social and lifestyle of the parents. It also includes the emotional ties of the parent and child, the ability of the parents to provide for the child’s needs, the child’s established ties to the home, community, school and religious activities.  Exposure to second and thirdhand smoke is part of the “health and safety” factor in the best interests’ analysis.
      • The Constitution’s security of parental autonomy and activities occurring within the home.  The Constitution recognizes the fundamental right of the parents in the decision making on issues related to family relationships and rearing of the children. The Court recognizes this right without interference, however parental autonomy is not absolute. The State has the right to intervene when the child’s physical or mental health is in question.  A child can be taken away from the smoking parents if it is for the best interest of the child.

      Three ways to have your kids back:

      • Quit Smoking. Simple. Judges take into consideration whether the smoking parent will really stop smoking.  However, this can be difficult since the nicotine in the cigarettes are addictive. The judge will question whether the parent will follow through and will not expose the child to second-hand smoking again.
      • Home & car smoking ban. If quitting smoking might be too difficult for you, or unwilling (sad but true to some parents), make it a rule never to smoke if your child is around. Make sure that your home and car is completely smoke-free. Even if not lit, smoke ashes and chemicals can stick to surfaces where children eat, play, and sleep and still expose them. 
      • Ensure family and friends don’t smoke too around your children. Judges also take into consideration the people around you and your child. If the family and friends’ smokes around your children, exposure will still be high with your kids.

      Risks to Children’s’ Health:

      Secondhand smoke can lead to serious disease to your kids which includes the following:

      • Increased risk of Sudden Infant Death Syndrome (SIDS)
      • Ear infection and fluid build-up and signs of chronic middle ear disease
      • Frequent and severe asthma attacks that can endanger the child’s life
      • Acute lower respiratory infections such as bronchitis and pneumonia
      • Upper respiratory ailments, including cough, sneezing, and shortness of breath.
      • Slowed lung growth resulting in reduced lung functions
      • Damage to child’s cognitive brain functions

      Thirdhand smoke

      This refers to a mixture of toxins that build up overtime that clings to the surfaces, hair, clothing, and upholstery long after the combustible tobacco products are extinguished and the second hand smoke evaporates.  The thirdhand smoke is even more dangerous to infants and young children as they tend to touch contaminated surfaces and put it in their mouths.  Children breathe faster than adults, thus intakes twice as much dust as adults.

      The most potent carcinogen is also produced through tobacco smoke which is tobacco-specific-nitrosamines (TSNA’s), is the combination of thirdhand smoke and nitrous acid, a common indoor air pollutant. 

      Smoking is child abuse?

      Repeated exposure of the children to secondhand smoke, which is a proven carcinogen, is a form of child abuse. According to federal law, child abuse is defined as “any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or an act or failure to act which presents an imminent risk of serious harm.”

      Some states may emphasize that the addictive factor of the nicotine in cigarettes can be nicotine dependence, therefore a disease. The parent who smokes can undergo treatment without judgment. Another argument states that the parent who smokes suffers moral failure in exposing the child to secondhand smoke and can be considered a criminal act.

      The right to privacy at home is also not absolute in case of establishing facts that there is no fundamental right to smoke.  Restrictions on parental smoking will be considered in protecting children from the dangers of secondhand smoke, and at worst the child can be taken away by the State.

      Cars and cigarettes are a dangerous combination

      Secondhand smoke in vehicles has been found to be more concentrated compared to any micro-environments tested, including smoke-free homes, smoker’s homes, smoke-filled bars, and outdoor air.  Major health advocate organizations have recommended that public policies are needed to protect non-smokers, especially the youth and children, from exposure to tobacco in vehicles. 

      A study by Kruger et al, as cited by Tobacco Control Legal Consortium (Oct 2017), that “smoking in vehicles also appears to occur at higher rates among socioeconomically disadvantaged populations, and thus, may contribute to inequalities in secondhand smoke attributable health outcomes.”

      Protecting your children from secondhand smoke starts at home. Do not allow anyone to smoke inside or let your babysitter or your family and friends smoke around your children.  Ensure that the daycare does not allow smoking within their premises. At school, make sure that there is absolutely no smoking policy, all activities do not allow smoking. 

      In public places, choose restaurants or establishments that do not allow smoking. “No Smoking” sections in certain places do not protect your children from secondhand smoke. Never allow other passengers in the car to smoke, even if they roll down their windows. Decide to have a smoke free lifestyle and ask the family and friends around you to respect your decision.

      Cases in which Courts Regarded Parental Smoking as a Factor in Determining Custody or Visitation of a Child with an Illness Exacerbated by Secondhand Smoke

      (Excerpt from Families & Children, Public Health Law Center at Mitchell Hamline School of Law)

      • Unger v. Unger, 274 N.J. Super. 532 (1994). A case in which the court’s custody determination focused almost exclusively on the effect of secondhand smoke on two minor children. The father brought a motion asking the court to modify the existing custody order, which gave the parties joint legal custody and granted primary physical custody to the mother, to ensure a smoke-free environment for the children. Medical evaluations and testimony indicated that one of the children experienced chronic bronchitis and both children had frequent respiratory complaints. The court held that “the effect of secondhand smoke is a factor that may be considered by a court in its custody determination as it affects the safety and health of children.” It ordered the court-appointed psychologist to reevaluate custody, considering the effects of the mother’s smoking on the children’s health, and ordered that there be no smoking in the home during this reevaluation period.
      • Lizzio v. Lizzio, 618 N.Y.S.2d 934 (Fam. Ct. Fulton Cty. 1994). The court considered the mother’s smoking as a determinative factor when modifying custody. One of the parties’ two children suffered from asthma and pulmonary difficulties. Evidence established that exposure to cigarette smoke triggered the child’s asthma attacks. Reversing the original custody order, the court awarded physical custody to the father largely because his home was non-smoking and he had taken “steps to protect his children’s health” when he quit smoking.

      Cases in which Courts Regarded Parental Smoking as a Factor in Determining Custody or Visitation, Regardless of the Child’s Health

      • Johnita M.D. v. David D.D., 191 Misc.2d 301 (Sup. Ct. N.Y. 2002). In this landmark case, a court first considered a child’s motion to be free from secondhand smoke. The child plaintiff filed a motion for a protective order requesting that the court restrain his mother from smoking during visits with him. The court noted that previous decisions granting children protection from secondhand smoke exposure had not concerned healthy children. The court took judicial notice of many medical and scientific studies and concluded that secondhand smoke exposure significantly increased the child’s risk of developing asthma, lung disease, and chronic respiratory disorders. The court held that it was in the child’s best interests to limit his exposure to secondhand smoke and ordered the mother not to smoke in her residence for a 24-hour period prior to visitation.


      Family courts have the authority to issue orders prohibiting smoking in the home while exposing the child under their parens patriae, and the statutory right to protect the children.  While parents have parental autonomy over their children including their privacy rights, do not supersede the children’s right to enjoy a safe and healthy home environment and to protect children’s health.  

      The court may consider secondhand smoke in making decisions of custody and visitation rights of the aggrieved parents, and to restrict parental smoking due to the negative health effects of secondhand exposure on children. Another study has found out that secondhand smoke causes non-smokers to develop lung cancer, acute respiratory diseases and chronic respiratory diseases. 

      The report also found that the children of parents who smoke, have an increased frequency of respiratory infections, and slightly smaller rates of increased lung functions as their lungs develop and mature. And that the simple separation of a smoker and non-smokers within the same air space does not necessarily reduce the non-smokers exposure to environmental tobacco smoke.

      FAQ’s on Child taken away due to smoking:

      Can the child be taken away if the parents are smoking?

      Court records revealed that a child can be taken away or the parents lose custody of the child due to smoking.

      What are the chances that the children will smoke too if their parents do?

      There is a 23 percent smoking rate of children whose parents are smoking as teens and have to quit by the age of 38. And among children whose parents started smoking late teens or in their 20’s, the smoking rate is 29%.

      How do I protect my child from secondhand smoke?

      • Ask people not to smoke around your kids.
      • Support family and friends who wants to stop smoking
      • Decide to have a smoke-free home and ask your family and friends to respect it
      • Throw out all the ashtrays at home
      • Teach your children to stay away from smokers and secondhand smoke
      • If you smoke, its high time to quit.

      Why is secondhand smoke riskier to children?

      Secondhand smoke is more dangerous to children because it causes acute lower respiratory infections such as bronchitis and pneumonia in infants and young children. Secondhand smoke exacerbates asthma in children and causes frequent and severe attacks.

      Is exposure to secondhand smoke a form of child abuse?

      Yes. Today parents who knowingly and continually expose their children to secondhand smoke are committing child abuse.

      Can you smoke around your child?

      There is no known risk-free exposure to secondhand smoke which causes numerous health problems in infants and children, including more frequent and severe asthma attacks, several respiratory illnesses, ear infection and sudden infant death syndrome (SIDS).