Do You Smoke? It May Affect Your Child Custody and Parenting Time Rights in New Jersey
People think about a range of issues when they try to resolve their child custody disputes in New Jersey divorce cases. One factor which may be overlooked is whether either parent smokes.
According to the Center for Disease Control, over 900,000 New Jersey residents are currently smokers. An article in The Washington Times explores this issue, noting that: “States are increasingly factoring in cigarette smoking in making decisions about who gets custody of minor children.”
In several States, such as Arkansas, California, Louisiana and Maine, the Legislatures have banned smoking in vehicles with children. New Jersey is not one of those States.
However, in Unger v. Unger, a New Jersey divorce case decided in 1994, the trial judge banned the parties from smoking in their houses or vehicles for 10 hours prior to their parenting time with the children, as well as during that parenting time.
The Unger court noted: “Clearly, the effect of ETS (environmental tobacco smoke) is a factor that may be considered by a court in its custody determination as it affects the safety and health of the children. Similarly, the fact that a parent smokes cigarettes is a permissible parental habit to consider when determining what is in the best interests of the children because it may affect their health and safety.”
An article in the Journal of the American Academy of Matrimonial Lawyers examined the issue of whether parents have a fundamental right to smoke. Parents defending that right commonly cite their “constitutional right to privacy and their constitutionally protected liberty interest in raising their children as they see fit.” However, the article points out that parents going through a custody dispute have already lost a modicum of their traditional parental autonomy, because the court now has the authority to determine what custody arrangement will be in the best interests of their child.
For many years, New Jersey courts have recognized that a parent’s rights must yield to the best interests of his/her child. As far back as 1974, in the case of In re J.S. & C., a New Jersey trial judge stated: “Although parents possess various rights such as custody and visitation, these rights will fall in the face of evidence that their exercise will result in emotional or physical harm to a child or will be detrimental to the child’s welfare.”
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