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#1 im_so_confused

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Posted 23 December 2012 - 02:38 AM

My ex lives in Kansas and has primary custody. She and her husband smoke and it is devastating to my children's health. Do I have any legal recourse to prevent them from smoking in the home/car and further damaging my children?
Also, can this be used as part of grounds for change in physical custody?

#2 adjusterjack

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Posted 23 December 2012 - 10:39 AM

My ex lives in Kansas and has primary custody. She and her husband smoke and it is devastating to my children's health. Do I have any legal recourse to prevent them from smoking in the home/car and further damaging my children?
Also, can this be used as part of grounds for change in physical custody?


I found the following on a Kansas attorney's website:

"the courts typically prefer to place kids in non-smoking households, where possible."

http://familylawlawyerskansas.com/

Several other search results indicate that smoking could be an issue for the courts in custody matters:

http://duckduckgo.co... parent smoking+

It's not clear whether a no smoking order or change of custody would result. Likely depends on a lot of factors.

I suggest you consult an attorney. And when you do, make sure you carefully question him about his experience in SUCCESSFULLY getting children away from smokers.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#3 Ted_from_Texas

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Posted 23 December 2012 - 11:10 AM

You would have to produce compelling evidence that smoking in the household is, in fact, damaging to the kids' health. Do they have a history of respiratory illness? If so, a physician's report will carry great weight with the court. If the kid's physician advises your ex that the kids need a smoke-free environment and your ex and/or her husband continue to smoke, you might have grounds to have custody revisited. Consult local counsel.

#4 im_so_confused

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Posted 24 December 2012 - 04:08 AM

Wow, that's awful, isn't it well proven that smoking is damaging? I have to prove it over again?
Since they visit the Dr. frequently while with their mother, (including my daughter three times and my son once in the last two months) is there a way for me to obtain those medical records from the physician? I am the carrier for their insurance.

#5 Ted_from_Texas

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Posted 24 December 2012 - 05:38 AM

It's pretty well proven that overeating is damaging to one's health. Would you want custody of your kids thrown open to question because they're a few pounds overweight? The law makes no judgment concerning parenting styles unless it can be shown that a particular style is responsible for placing a particular child's health and/or safety in jeopardy. It's never a good idea to attempt to apply general statistical data to individual cases. Many smokers live into their nineties.

As for obtaining medical records, what does your custody order say?

#6 FindLaw_Amir

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Posted 24 December 2012 - 08:47 AM

To learn more about this subject matter, you may wish to visit the Family Law Center and read Child Custody as a good resource. I also suggest you consult with a local Child Custody Lawyer to advise you further in detail about your specific situation.
FindLaw's Legal Heads-Up! newsletter can provide you with the legal resources you need to make informed decisions when law touches aspects of your everyday life.

#7 adjusterjack

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Posted 24 December 2012 - 10:42 AM

Wow, that's awful, isn't it well proven that smoking is damaging?


Yes.

I have to prove it over again?


Yes.

Any time you "allege" something in court you have to prove it. And, in this case, you have to prove that the smoking is directly damaging the health of your children, not just that it "might" be damaging.

Since they visit the Dr. frequently while with their mother, (including my daughter three times and my son once in the last two months) is there a way for me to obtain those medical records from the physician? I am the carrier for their insurance.


There should not be any reason that you cannot just walk into the doctor's office and request copies of the records. But it the doctor won't give them to you, you will have to subpoena them. You might be able to do that before you file your custody motion with the court or you might have to do it after you file your motion.

You might also have to hire a medical expert to examine your children, review their records, and testify in court as to how smoking is affecting their health.

This is not going to be as easy as walking into court and saying "They smoke."

I suggest you consult a family law attorney about this.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#8 missingmyhubby

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Posted 26 December 2012 - 01:41 PM

My ex lives in Kansas and has primary custody. She and her husband smoke and it is devastating to my children's health. Do I have any legal recourse to prevent them from smoking in the home/car and further damaging my children?
Also, can this be used as part of grounds for change in physical custody?

My ex lives in Kansas and has primary custody. She and her husband smoke and it is devastating to my children's health. Do I have any legal recourse to prevent them from smoking in the home/car and further damaging my children?
Also, can this be used as part of grounds for change in physical custody?

would you like your ex to dictate what you can and cant do in your home? if they want to smoke in their home thats their business-and none of yours. you do not have grounds to change custody.

#9 pg1067

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Posted 27 December 2012 - 07:46 AM

would you like your ex to dictate what you can and cant do in your home? if they want to smoke in their home thats their business-and none of yours. you do not have grounds to change custody.


As usual, "missingmyhubby" has no clue what he/she is talking about.


I say the following as someone who cannot stand to be around smokers: As for your original question, unfortunately, smoking is perfectly legal. It is also legal to smoke in one's home with children present. While it is well-established that smoking and exposure to second-hand smoke are potentially harmful to one's health, not every smoker or person exposed to second-hand smoke suffers "devastating" health effects as a result. Both of my parents smoked. My father died in his early 50s when I was 7 years old. My mother, on the other hand, lived into her mid-80s. I lived with my mother until I was in my early 20s, and she smoked the entire time I lived with her (she stopped smoking about 5 years before her death). She never had any apparent adverse health effects and, as far as I know, neither did I.

The point of this is that courts will not assume that being in a home in which a parent smokes will necessarily be harmful to a child. You don't have to prove that exposure to second-hand smoke is potentially harmful. Rather, you must prove that your child's other parent's smoking is presently harming your child's health.

A couple of other points/issues to keep in mind. First, if two parents are married and cohabitating, no one will bat an eye if they smoke in their home with children. Why should the situation be different when the parents are not married or cohabitating? That's a rhetorical question, of course, and courts will occasionally require that parents who are subject to a custody order not smoke in the presence of their children. Second, why didn't you seek such a restriction at the time the existing custody order was put in place? Third, why wasn't this an issue when you were together with your ex and chose to have a child with him/her?

#10 im_so_confused

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Posted 10 January 2013 - 06:13 AM

She didn't smoke at the time, she started after the divorce and after the custody order.

#11 im_so_confused

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Posted 15 January 2013 - 10:59 AM

And also, the difference between cohabitating parents who smoke, and divorced parents where one smokes and one doesn't is, in a cohabiting relationship, both parents are making parenting decisions together as to how their children are raised, in a divorced situation, even though I do not live in the same house as my ex, I am still entitled to an equal say as to how they are raised, and I wish to see them not ill and in jeopardy due to her decision to smoke, my opinion in the matter of their health and well being should count for as much as hers, and requiring her to step into the yard to smoke instead of in the house is not a ludicrous request when it comes to the well being of my children.
There are laws in some states prohibiting smoking in vehicles with children, and many states prohibiting smoking in public venues, so why is there nothing to protect my children from the dangers of someone else's poor choice?

#12 im_so_confused

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Posted 15 January 2013 - 11:01 AM

The stench on the children when they get in my car should be proof enough!

#13 Fallen

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Posted 15 January 2013 - 11:32 AM

Certainly, you're free to ask the family court to change the order that the adults in the home aren't allowed to smoke inside the home/around the kids. If they continue to smell like smoke, you should get third party disinterested folks who are willing to sign an affidavit/declaration to that effect. I don't see this as grounds to change custody, but you're free to discuss strategy with a local family law attorney.

Naturally, when you make an assertion that it's "devastating to the kids' health" then you need to be able to back that up ... which would mean ALREADY having had access to their medical records. No reason why you can't demand to see them, unless court completely cut you out in terms of legal custody and related decision-making/awareness of school and medical well-being, etc. which doesn't seem to be the case.

No need to keep pounding away at it on a message board; seek local counsel.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#14 pg1067

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Posted 15 January 2013 - 01:50 PM

And also, the difference between cohabitating parents who smoke, and divorced parents where one smokes and one doesn't is, in a cohabiting relationship, both parents are making parenting decisions together as to how their children are raised, in a divorced situation, even though I do not live in the same house as my ex, I am still entitled to an equal say as to how they are raised


Your first follow up last Thursday (1/10), which explained that your ex didn't start smoking until after you divorced, was sufficient. This further follow up is illogical and incorrect. If a non-smoker chooses to have a child with a smoker, the non-smoker effectively agrees to subject the child to growing up in a house with at least one smoker. If you're married and together, you cannot prevent your spouse from smoking in the house and otherwise around the child. Additionally, even with joint custody, the parents do not have any say in most of the things that the child does or experiences at the other parent's house. For example, you might think 9:00 p.m. is the appropriate bedtime. If your ex disagrees, you don't get to dictate the child's bedtime at the other parent's house. Likewise, if your ex thinks the child shouldn't see any movie rated higher than "PG" but you're ok with letting the child watch "PG-13" and "R" rated movies, your ex can't prevent you from allowing the child to see such movies while the child is with you.


There are laws in some states prohibiting smoking in vehicles with children, and many states prohibiting smoking in public venues, so why is there nothing to protect my children from the dangers of someone else's poor choice?


First of all, laws in other states aren't relevant. Is there such a law in your state (which I think you said is KS)? Second, if no such law exists in your state, the reason why is because the legislature hasn't enacted such a law. You're free to research whether any bill was ever proposed and rejected and, if so, inquire of the legislators who voted against it why they voted that way. You are, of course, free to lobby your elected representatives to propose and enact whatever laws you want.


The stench on the children when they get in my car should be proof enough!


Proof of what? As I already pointed out, there is no question that exposure to second-hand smoke is potentially harmful. Whether that potential, together with the fact that your ex didn't smoke when you were together, is sufficient to get some sort of a modification of your custody/visitation order is something only a local practitioner is going to be able to answer. Obviously, if you have evidence of actual harm (e.g., if your child is asthmatic or has some other respiratory ailment), your chances of success likely increase.

#15 Fallen

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Posted 15 January 2013 - 02:03 PM

I don't know what laws KS has on books.

At any rate, you've been told you're free to pursue this with counsel in the family court.

"If you're married and together, you cannot prevent your spouse from smoking in the house and otherwise around the child."

Sure you can (even if that means testing your kid regularly for nicotine levels and smelling it to ensure spouse isn't "cheating" on established policies/rules and filing for divorce on the basis of this being a deal-breaker if violated), but never mind.

"Additionally, even with joint custody, the parents do not have any say in most of the things that the child does or experiences at the other parent's house."

They can about a health-safety issue, which this is. (Note I'm a smoker.)

We aren't talking about bed times, so that's a false equivalency. (I'd also argue that one would have reason to pursue if parent regularly dragged kids along to an "R"-rated picture, which would be inappropriate unless/until they're early-mid teens.)

Bottom line is how much poster wants to spend on pursuing this if other parent wants to ignore a polite, pointed letter from an attorney saying that your protests have fallen on deaf ears and this is what you're prepared to do to see it through. I'd go low-level first. What can be accomplished depends on KS laws and what a given judge's ruling habits are in relevant county.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#16 pg1067

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Posted 16 January 2013 - 07:36 AM

"If you're married and together, you cannot prevent your spouse from smoking in the house and otherwise around the child."

Sure you can (even if that means testing your kid regularly for nicotine levels and smelling it to ensure spouse isn't "cheating" on established policies/rules and filing for divorce on the basis of this being a deal-breaker if violated)


No, you can't (unless you're talking about ridiculous extremes like committing battery every time the smoker lights up). Unless something illegal is happening, the law does not interfere with how married parents living together live their lives and raise their children. How exactly do you suppose the objecting parent could prevent the smoking parent from doing these things? Spouse 1: "Honey, please don't smoke in the house or otherwise around little Scooter." Spouse 2: "F-you. It's my house as much as it is yours, and I'll smoke where I want." What "established policies/rules" do you think apply where the parents are married and together? Yes, obviously, the objecting spouse can file for divorce, but then they'd be no longer together.


"Additionally, even with joint custody, the parents do not have any say in most of the things that the child does or experiences at the other parent's house."

They can about a health-safety issue, which this is. (Note I'm a smoker.)


Wrong again. Obviously, a parent can seek any sort of court order, but we're clearly talking about situations where no court order specifically on point exists.


We aren't talking about bed times, so that's a false equivalency. (I'd also argue that one would have reason to pursue if parent regularly dragged kids along to an "R"-rated picture, which would be inappropriate unless/until they're early-mid teens.)


I have no idea what you're talking about here. The poster asserted that he is "still entitled to an equal say as to how [his kids] are raised" "even though [he does] not live in the same house as [his] ex," and I was dispelling him of that notion. As you well know, in the absence of a court order that is specifically on point, divorced/no longer together parents do not get a say regarding most of what happens when the kid is with the other parent. Does a bedtime fall into a different category than poisoning your child in terms of the possibility of getting a court order? Probably, but that's not the point. In the absence of a court order, they're no different at all.

#17 missingmyhubby

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Posted 16 January 2013 - 07:52 AM

As usual, "missingmyhubby" has no clue what he/she is talking about.


I say the following as someone who cannot stand to be around smokers: As for your original question, unfortunately, smoking is perfectly legal. It is also legal to smoke in one's home with children present. While it is well-established that smoking and exposure to second-hand smoke are potentially harmful to one's health, not every smoker or person exposed to second-hand smoke suffers "devastating" health effects as a result. Both of my parents smoked. My father died in his early 50s when I was 7 years old. My mother, on the other hand, lived into her mid-80s. I lived with my mother until I was in my early 20s, and she smoked the entire time I lived with her (she stopped smoking about 5 years before her death). She never had any apparent adverse health effects and, as far as I know, neither did I.

The point of this is that courts will not assume that being in a home in which a parent smokes will necessarily be harmful to a child. You don't have to prove that exposure to second-hand smoke is potentially harmful. Rather, you must prove that your child's other parent's smoking is presently harming your child's health.

A couple of other points/issues to keep in mind. First, if two parents are married and cohabitating, no one will bat an eye if they smoke in their home with children. Why should the situation be different when the parents are not married or cohabitating? That's a rhetorical question, of course, and courts will occasionally require that parents who are subject to a custody order not smoke in the presence of their children. Second, why didn't you seek such a restriction at the time the existing custody order was put in place? Third, why wasn't this an issue when you were together with your ex and chose to have a child with him/her?

what makes him think he has a right to dictate what someone does in their own home? would he like it if someone told him what he could and couldnt do?

#18 pg1067

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Posted 16 January 2013 - 08:05 AM

what makes him think he has a right to dictate what someone does in their own home? would he like it if someone told him what he could and couldnt do?


Your questions are argumentative and pointless. If you don't have anything useful to say (and I don't ever recall seeing a post of yours that was useful or constructive), don't bother posting.




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