Smoking in the house is a common issue, especially with FD docket cases. Its rare that one parent starts smoking after the divorce. Thus, either or both parent likely smoked before the divorce and therefore, it would be rare that this would suddenly become an issue post-divorce. However, it does become an issue when a parent moves in with someone such as a paramour or a family member who does smoke.
Courts have clearly found that smoking around the child causes harm and as a result, a smokey house may play a big part in the court’s decision making. There is case law on this issue, specifically Unger v. Unger, 274, N.J. Super (Ch Div 1994). In that case, the father complained that the mother was smoking around the children to the point where one child developed a cough. This was despite a consent order where the mother agreed not to smoke around the child. At the end of the trial, the judge entered an order that the mother could not smoke in the house within 10 hours of the children being at the house. Of course, the house will still smell like smoke. Thus, some judges may force the parent to smoke outside.