NEW JERSEY: Can you lose custody of the kids because you smoke?

Environmental Tobacco Smoke (“ETS”) are increasingly becoming an issue in custody battles across the country. Can a parent lose custody of their child for exposing them to ETS? In most states, the answer to that question is “it depends.” Most if not all states in the United States use best interest of the child analysis in determining custody. Is it in the best interest of the child to be in the custody of a parent who smokes? It might be all other things held constant. But there are instances where the courts are leaning to smoking being a problem. That is where it can be demonstrated that the child has a medical condition that is exacerbated by cigarette smoke – conditions such as asthma, allergies and respiratory infections. These conditions need not be “severe” in order to divest a parent of custody. If the other parent can show they can provide a totally smoke free environment and that the child’s health conditions would be improved by such, it may be sufficient for that parent to win custody.
New Jersey law firm Paone adn Zaleski has a great, well reasoned article on this issue. Check it out here: