Child Custody and Smoking

In Georgia, Superior Court judges make determinations of custody in cases that involve the custody of a minor child. In making their decisions, Georgia courts look to several factors in order to determine what is in the best interest of the child involved. See our section entitled: “Determining Child Custody: Best Interests of the Child,” for more information. If a court finds that one parent’s lifestyle, actions or living arrangements are not conducive to the best interests of the child involved, that parent could be denied custody of his or her child. Therefore, it is important for parent’s seeking custody to be conscious of any actions or activities that may harm their child’s best interests. One activity that may potentially harm a child’s best interests, and thus hurt a parent’s likely hood of receiving custody, is smoking.   If you are involved in a child custody dispute and you are a cigarette smoker, your chance of getting full or even joint custody might be hindered.

Smoking, like other parenting decisions, is something that may be handled in a parenting plan or settlement agreement between you and your ex-spouse. However, these types of agreements are normally entered into between spouses who have come to some consensus regarding custody and parenting issues. These types of provisions normally involve limiting a parent’s ability to smoke or engage in other behaviors during his or her parenting time or visitation with the child.

However, if the parents are still actively engaged in a divorce or custody battle, one parent’s smoking habit may potentially be used against that parent in the custody battle and may also potentially lead to that parent being viewed less favorably by the judge regarding custody. Although Georgia courts will not deny a parent custody based upon one factor alone, it is important for a parent seeking custody to place themselves in the best position possible to receive custody. States, including Georgia, are increasingly factoring in cigarette smoking in making decisions about who gets custody of minor children. In fact, in a recent case here in Georgia, a mother lost custody of child as a result of her smoking habit. After the parties divorce, it was discovered that the child had asthma. The court found that the mother’s actions of smoking in the presence of her child implied that she had insufficient concern for her child. As a result, the court awarded custody of the child to the father. Daniel v. Daniel, 235 Ga. App. 184 (1998).

As seen in the case outlined above, second hand smoke is potentially dangerous, especially for young lungs. Additionally, smoking may also lead to a parent loosing custody of his or her child under specific circumstances. Thus, if you are a parent who smokes, you should consider taking some of the steps outlined below. These steps will not only make your home environment safer for your children but also limit the likelihood that a court will determine your habit harmful to your children.

  • Always smoke outside and wait a while after you finish smoking a cigarette or cigar before re-entering your home.
  • If you must smoke in your home, try and restrict it to one room away from your children, like a bathroom or storage room. Always have a window open for cross ventilation or use a good air filtration system.
  • Never smoke in a car when your children are present. Smoking with a car window open or cracked is not sufficient as cars are very confined areas.
  • Try to avoid smoking in areas or at times where your children will be exposed to secondhand smoke.
  • Try to quit smoking if at all possible. There are several resources available for those who wish to quit. See the following sites for more information: Centers for Disease Control and PreventionEnvironmental Protection AgencyAmerican Lung Association,