Abstract
A considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court's care fails those children whom the law has entrusted to its care. A number of cases take judicial notice of the danger of secondhand smoke to children. Those cases recognize this danger is one of the "best interests of the child" factors that a family court should take into account when determining visitation and custody issues. The issue emerges when either a non-smoking parent raises the issue of the dangers of secondhand smoke to the child or if the child has a respiratory problem.
This Article demonstrates that under existing American law, a family court—on its own initiative and regardless of the health of the child—has a legal duty to consider the danger of secondhand smoke to children as a significant, possibly determinative (where child has health problems), factor in deciding issues of visitation and custody. To protect children under their care, family courts, as a matter of standard practice, must issue court orders restraining anyone from smoking in the presence of those children.
How to Cite
45 Ariz. L. Rev. 801 (2003)
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