Can I Stop My Ex From Smoking Around Our Child?

Conference Meeting

There will probably always be things your ex does that irritate and annoy you. Maybe he (or she) is perpetually five minutes late. Maybe you think he lets your joint child watch too much television during visitation times. Perhaps you think he takes the "healthy lifestyle" too far and should let your joint child have an ice cream cone once in a blue moon.

These types of issues may make you fume, but they do not rise to the level of importance where Texas family law courts would get involved. However, there are some issues that used to be considered "minor" that are becoming a bigger concern. One of these issues involves cigarette smoking around children.

For a long time, family court judges avoided invading the privacy of a person's home to place restrictions on a person's freedom to smoke. However, facing new evidence on the negative health effects on children of exposure to secondhand smoke, family court judges in Texas and elsewhere have used cigarette smoking to make or change custody orders and to modify visitation orders.

Three recent cases provide examples of the lengths to which family law courts are going to protect children of divorced parents from secondhand smoke:

In the 1988 Texas case of Pizzitola v. Pizzitola, the court of appeals affirmed the jury's decision to award custody to the nonsmoking father even though the mother was the primary caretaker of the children during the marriage. The father had testified that the mother has smoked in the children's presence and that one of the children was extremely allergic to smoke.

Lizzio v Lizzio, a 1994 New York case, is an example of decisions in which family courts favor custody arrangements that provide protection from secondhand smoke for children with respiratory illnesses. In Lizzio, the court reversed its original custody determination after the custodial parent refused to provide a smoke-free environment for the child.

In Johnita MD v David DD (New York 2002), the New York Supreme Court ruled that the 13-year-old in question had the right to live in a smoke-free environment and further ruled that neither parent could smoke in the home or car when the child was present. This landmark case addressed cigarette smoking and its effects on a healthy child.

These case summaries and others can be reviewed in an article titled "Children's Secondhand Smoke Exposure in Private Homes and Cars," located on the federal government's National Institutes of Health website.

Contact Pfister Family Law

At Pfister Family Law, we have protected the rights of people across north Texas for more than 20 years. Board-certified in family law by the Texas Board of Legal Specialization, Frisco family attorney John J. Pfister, Jr. understands that every case is different and will take the time to learn the details of your situation. We will then carefully craft an individualized approach to help you get the outcome you want.

For an appointment with an experienced child custody lawyer who can help you create a strategy to protect your child from secondhand smoke, contact our office by e-mail or call us at (972) 370-5172.

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