Is smoking tobacco products grounds to file for a modification of custody?

UPDATED: Jul 25, 2011

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Is smoking tobacco products grounds to file for a modification of custody?

I have recently found out that my ex has started smoking. Obviously the risks of second hand smoke is a huge concern to me. I have asked him to quit in the presence of his daughter and when he refused, I gave him a rough draft for a modification of custody. Its a simple modification (just adding a stipulation). He wont sign it, and now has hired an attorney to be present at mediation. Do I have grounds to modify the custody? Should I also hire an attorney?

Asked on July 25, 2011 Utah


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

There are two types of custody; physical and legal.  Physical custody means the parent with whom your daughter lives.  Legal custody means making decisions about your daughter's healthcare, education, etc.

You may have a good argument for seeking a modification of physical custody because your daughter's health is clearly endangered by secondhand smoke.  In some states, smoking in a car when a child is a passenger is prohibited.  I don't know if Utah is one of those states.  Since your husband has an attorney, it would be advisable for you to also be represented by an attorney.


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