Would an Illinois family law court restrict a parent’s ability to smoke cigarettes or vape around a child? Specifically, can a court limit a parent’s time with his or her minor child to prevent the exposure to second-hand smoke or vapor? The answer to this hypothetical question is hazy at best.
First, there’s the data about the harm caused by smoking. According to the Centers for Disease Control and Prevention, over 34 million people in the United States smoke tobacco products. That’s about 14% of all adults in the nation. While the health effects associated with one’s personal use of tobacco are well-established, ranging from cancer to arthritis, it is further believed that approximately 2.5 million nonsmokers have died from health-related problems caused by exposure to secondhand smoke since 1964.
In 2008, through Section 82/5 of the Smoke Free Illinois Act, the Illinois legislature made legislative findings that secondhand tobacco smoke causes heart disease, stroke, cancer, sudden infant death syndrome, low-birth-weight in infants, asthma and exacerbation of asthma, bronchitis and pneumonia in children.
Beyond the Smoke Free Illinois Act, the current Illinois legislature has extended its scope once again to curb the effects of secondhand smoke in children riding in vehicles. As part of its continued concern for tobacco use and the health effects upon children caused by secondhand smoke, the Illinois legislature passed House Bill 2276 to amend the Illinois Vehicle Code by adding 625 ILCS 5/11-1432. This amendment/addition to the Illinois Vehicle Code was approved by Governor J.B. Pritzker on August 23, 2019 and is due to take effect on June 1, 2020.
The bill itself prohibits “smoking,” meaning the inhale, exhale, burn, or carry of a lighted cigarette, cigar, pipe, marijuana, weed, plant, regulated narcotic, or other combustible substances, within a vehicle that contains a child under the age of 18 years of age, regardless of whether the vehicle’s windows are open. It does not mention vaping. The violation of this law will result in a petty offence punishable by a fine not to exceed $100 and a fine not more than $250 for second or subsequent offenses.
So how might this apply to parenting time? Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act states, in relevant part, that it is presumed both parents are fit. The act further states that the court shall not place any restrictions on parenting time as defined in Section 600 and described in Section 603.10, unless it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
Restrictions under Section 603.10 may include, but are not limited to a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time; requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time; or any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.
Section 602.7 lists 17 independent factors that courts are required to consider when allocating parenting time under Section 602.7 or restricting parenting time as described in Section 603.10. None of them specifically mention smoking. The law does, however, include a catch-all provision allowing the court to consider any other factor that the court expressly finds to be relevant.
One could make the legal argument that smoking around a child should be prevented in accordance with this “any other factor that the court may find to be relevant” provision. Furthermore, one could also argue that a smoking parent’s ability to engage in smoking around their child should be restricted under the “any other constraint or condition that the court deems necessary to provide for the child’s safety or welfare” under Section 603.10.
By its plain language the Illinois Marriage and Dissolution of Marriage Act leaves open the possibility for courts to exercise discretion based upon relevant factors when containing or conditioning a parent’s parenting time. Given the support of information provided by Centers for Disease Control and Prevention and the concern that the Illinois legislature has for the effects of secondhand smoking, as illustrated by the enactment of the Smoke Free Illinois Act and the newly-passed provisions of the Illinois Vehicle Code, the concern for a child’s health and a smoke free environment may be the basis for restricting the act of smoking around children.
In contrast, vaping isn’t mentioned in the Smoke Free Illinois Act or the Vehicle Code. While there is evidence that it is harmful to the user, there isn’t much evidence at the present time showing that second-hand vapor is harmful to children. In other words, a case for restrictions on parenting time based upon vaping would be more of a stretch.
If you have concerns for the health and welfare of your child being exposed to secondhand smoke around their parent, contact Kollias & Giese, P.C.