Families & Children

Roughly two in five children in the United States are exposed to secondhand smoke. Children who are exposed to secondhand smoke are at an increased risk for sudden infant death syndrome, respiratory infections, asthma, slowed lung growth, and other respiratory symptoms. Children who are exposed to secondhand smoke in the home are also more likely to become smokers. Due to the significant health impacts of secondhand smoke exposure on children, family courts are increasingly considering parents’ smoking habits as a factor when making child custody and visitation decisions.


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Smoking with kids in the car

Kids, Cars and Cigarettes: A Policy Overview (2017)

The only effective way to fully protect nonsmokers from harm is to eliminate smoking in enclosed spaces including homes, worksites, public places, and vehicles. This resource provides answers to several common questions about regulating smoking in cars when children are present.

Boy on playground

U.S. Prohibitions on Smoking with Children in Cars (2020)

Brief chart of state legislation prohibiting smoking in cars with children. Age thresholds vary among jurisdictions, ranging from under age 8 (Vermont) to under age 18 (California).


Legal Issues

A court’s ability to make custody and visitation decisions aimed at protecting children from the dangers of secondhand smoke is guided by the following legal considerations:

  1. the doctrine of parens patriae; and
  2. “the best interests of the child” standard; and
  3. the Constitution’s protection of parental autonomy and activities occurring within the home.

Parens Patriae

The doctrine of parens patriae (literally, “father of the people”) refers to the power of the state to usurp the rights of a natural parent and act as the parent of any child who is in need of protection. It stems from the idea that the state has an affirmative duty to protect those who cannot protect or speak for themselves, particularly children within the care of the juvenile and family court system. In most jurisdictions, parens patriae is reflected in the principle that the single most important concern of the courts is the protection of the “best interests” of children.

“Best Interests of the Child”

The “best interests of the child” standard is the lodestar principle guiding family court decisions regarding the custody and care of children. It is a broad standard that requires extensive fact-finding and weighing of evidence by the court and grants significant judicial discretion.

All fifty U.S. states require that courts use the “best interests” standard in making child placement decisions. Some states’ statutes contain specific language detailing factors that must be considered when making best interests determinations. Other states’ statutes are more general and give the courts considerable discretion. Although the contours of the best interests standard vary slightly by jurisdiction, courts generally consider the following factors when making best interests determinations: the age and gender of the child; the mental and physical health of the child; the mental and physical health of the parents; lifestyle and other social factors of the parents; the emotional ties between the parents and the child; the ability of the parents to provide the child with food, shelter, clothing, and medical care; the child’s established ties to school, home, community, and religious institutions; the child’s preference, if the child is of sufficient age and maturity to express a preference. Exposure to secondhand smoke is typically considered as part of a “health” or “safety” factor in the “best interests” analysis.


Constitutional Protection of Parental Autonomy and Activities Occurring Within the Home

The Constitution protects a fundamental interest in the right to autonomous decision making on issues related to family relationships and the rearing and education of children. The Supreme Court has recognized a parent’s right to raise his or her children without state interference as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment and as a privacy interest derived from the “penumbra” of rights inherent in the Constitution. But the right to parental autonomy is not absolute; the state has an affirmative obligation to intervene when necessary to protect a child’s physical or mental health. Therefore, a court order prohibiting a parent from smoking in the home will likely be upheld if it can be shown that secondhand smoke exposure will have a significant impact on a child’s health.

The Constitution also protects activities occurring within one’s home, on the grounds that individuals have a reasonable expectation of privacy in their homes under the Fourth Amendment. However, the right to privacy in one’s home is not absolute and will be viewed in light of case law establishing that there is no fundamental right to smoke. Restrictions placed on parental smoking in the home will likely be evaluated under rational basis review, the lowest level of scrutiny, because smoking is not a fundamental right. Under rational basis review, a court would analyze whether the state’s interest in restricting parental smoking to protect children from the dangers of secondhand smoke is legitimate, and whether the given restriction is rationally related to achieving that interest. Given the significant negative health effects of secondhand smoke exposure on children, it seems likely that court decisions restricting parental smoking in the home would survive legal challenge on privacy grounds.

In conclusion, family courts have the power to issue orders prohibiting parental smoking in the home or in the presence of a child under their parens patriae and statutory authority to protect child welfare. Although parents have parental autonomy and privacy rights under the Constitution, these rights do not trump children’s rights to enjoy a safe and healthy home environment or the state’s authority to protect children’s health. Family courts may properly consider secondhand smoke exposure when making custody and visitation decisions, and orders restricting parental smoking should be survive legal challenge on due process and privacy grounds because the negative health effects of secondhand smoke exposure on children are well established and the state has a legitimate interest in protecting children’s health.


Select Research


Select Litigation

This sampling of cases illustrates the types of circumstances under which family courts will consider smoking as a factor in making child custody and visitation decisions. Often, whether children have specific health conditions which makes them more susceptible to the adverse health impacts of secondhand smoke will influence the weight a court places on parental smoking in a custody or visitation decision, so the cases are categorized by whether the children involved were healthy or suffered from an illness exacerbated by secondhand smoke.

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

  • 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.
  • Daniel v. Daniel, 509 S.E.2d 117 (Ga. Ct. App. 1998). The appellate court upheld a custody modification granting a change in custody to the father because the mother continued to smoke in the presence of an asthmatic child, holding that the child’s asthma diagnosis was a clear change in circumstances warranting modification. The appellate court noted that the mother had continued to smoke around the child for three years following the asthma diagnosis, despite the trial court’s advice to quit smoking at the temporary custody hearing. The appellate court stated her continued smoking “suggest[ed] that she was not adequately concerned about the child’s health.”
  • Gilbert v. Gilbert, 1996 Conn. Super LEXIS 2153 (1996). The court granted the father’s motion to modify custody primarily based on the fact that the mother and the stepfather smoked in the presence of child, who suffered from asthma. Notably, the court considered the proper weight to be placed upon secondhand smoke exposure as a factor in a custody decision. The court stated that when the other “best interests” factors are comparable, the court may primarily base its custody determination on a factor, such as secondhand smoke exposure, which clearly relates to the physical health of a child.

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

  • In re Julie Anne, 780 N.E.2d 635 (Ohio Com. Pl. 2002). A case in which the court, on its own initiative and in a matter of first impression in a custody and visitation proceeding, took judicial notice of the scientific evidence regarding the dangers of secondhand smoke on children. On its own motion, the court raised the issue of whether the parents should be restrained from smoking in the presence of their healthy child. The court ordered the parents not to allow any person to smoke in the presence of their child, based upon the ample scientific evidence that secondhand smoke poses a substantial danger to children’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.


External Resources