I've researched this question and have found nothing. I am primarily interested in NY but would be interested in what anyone knows about other States.

Parents not married, never lived together, mother has custody simply because she has the child living with her.

The situation is - non-smoking mother does not allow anyone to smoke in the house, in the vicinity of baby. Father wants to take child for the day. Father smokes (so far not in presence of child but has never had the child alone); father's parents smoke (although he does not live with them it is anticipated he will visit with child).

"Informal agreement" - and we all know what a mistake that can be. Father pays support but has never requested custody/visitation because they have an "agreement." Again - we've all heard that before.

Anyway - can mother refuse to allow the father to take the child because she assumes someone will smoke in child's presence? If child DOES come back "smelling of smoke," can she refuse subsequent visits out of her sight.

And if father files for visitation/custody can he be refused on the grounds that he "might" smoke in the child's presence or that his parents allow smoking in their house?

I have no idea and would appreciate some brainpower here.

Mother does not have "custody" merely because the child is with her.

Who is on the birth certificate.

The mother can refuse anything if there is no court order.

So mother needs to file for real legal cusody and file for child support.

But yes of course the father can take the child if he is smoking, smoking is not illegal and unless there is documented health problems.

There is no law Im aware of in any state regarding smoking around a child. There are laws that prevent smokers from being near children in playgrounds etc. But no outright ban as far as ones own children. Now the stigma that goes with certain activities like smoking may raise eyebrows but in all I agree with Fr_Chuck. If no prexisting health conditions are present I don't see it as a real problem. Also even if there are they parent has to be given the chance to be around the child and let the situation carry itself. They can choose to ban smoking in their home and never around the child and still smoke if that is their desire. But to cut a parent off completely would be rediculious.

Are there health problems with the child? This actually an ethical dilemma I faced last night at work.

First, the agreement was informal. Second, smoking, while not good to do in front of a child, is not illegal.

The mother cannot do anything because she ASSUMES... you realize what happens when we "assume" right? It makes an A$$ out of U and ME.

If I, and I do have legal grounds not to release a baby, suspect child abuse/drug abuse/smoking, I cannot do anything other than report the suspicions.


if father files for visitation/custody can he be refused on the grounds that he "might" smoke in the child's presence or that his parents allow smoking in their house? The answer to this question is NO because of the word "might." We don't know this is the case. The father may smoke outside where the child may be in the wind of the father's smoke, thus the smell on the clothes. There are too may variables here. Dad may have smoke on his clothes and hug the child, thus transferring the smell to the child.

The courts have more serious problems to deal with than smoking. Drug babies being release to drug parents.

In the end, if the child has no current health problems to speak of, this is a legal lifestyle choice.

mother does not have "custody" merely because the child is with her.

Who is on the birth certificate.

The mother can refuse anything if there is no court order.

So mother needs to file for real legal cusody and file for child support.

But yes of course the father can take the child if he is smoking, smoking is not illegal and unless there is documented health problems.


The mother has full custody and control of the child unless/until there is an Order that says something else. Father is on the birth certificate.

Mother does get child support - father did not counter with request for custody and/or visitation but they have an "arrangement." Court addressed this, advising father that mother has full custody and he has no rights unless he asks for them. He said nothing.

There are no documented health problems.

The court misspoke. The father does in fact have rights. They may be only legal rights but he is entitled to them unless there was a TPR. He may not have visitation rights because he didn't speak up. But he has the right to change that at any time. Again unless there is a TPR going in this case.

I should have said he cannot EXERCISE his rights until the Court so orders. Yes, as the father he has rights.

I should have said he cannot EXERCISE his rights until the Court so orders. Yes, as the father he has rights.

Well you know how it is posting in the Law Board :)~~~~~~

Anyway - can mother refuse to allow the father to take the child because she assumes someone will smoke in child's presence?
Hello,Judy!
I have never heard any smoker to be cut of rights only because he is a smoker.

Even more-an Appellate court declined to consider that fact in a custody/visitation battle as irrelevant.


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