Smoking and Divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Secondhand Smoke And Child Custody In Illinois

Smoking and Divorce in Illinois

Smoking cigarettes is less and less common today…but 15% of Illinois’ population still smokes cigarettes, pipes, cigars and other forms of tobacco. No one wants their kids to smoke cigarettes or even be exposed to secondhand smoke but people who smoke cigarettes are addicted to nicotine and often prioritize smoking over their children’s health.  So, what is the rule regarding secondhand smoke and child custody in Illinois? 

in 1977 the Illinois Marriage and Dissolution of Marriage Act (IMDMA) was enacted.  In 1977 everyone smoked so there certainly wasn’t a prohibition against smoking in the statute.  The Illinois Marriage and Dissolution of Marriage Act (IMDMA) still remains silent on the issue of smoking cigarettes around the children. 

So, in order to restrict the other parent from smoking around your children, you need to put that restriction in final divorce or parentage documents.

Include Smoking Restrictions In An Illinois Allocation of Parenting Time And Parenting Responsibilities.

In every parentage action or divorce filed in Illinois, the parties must propose a document which will govern how the parents conduct themselves with the children.  This document is referred to as a “parenting plan.”

“All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan.” 750 ILCS 5/602.10(a)

The parenting plan, hopefully, becomes the final document that governs the parents’ relationship with the children which is referred to as an allocation of parenting time and parenting responsibilities

Note that the two terms, ”parenting plan” and “allocation of a parenting responsibilities” are usually used interchangeably amongst Illinois family law attorneys and judges. 

Anyways, you can propose ANYTHING in your parenting plan. The parenting plan does not have to follow some standard formula…it can be anything you want the court just has to approve it…but so does the other parent.

“Unless the parents present a mutually agreed written parenting plan and that plan is approved by the court, the court shall allocate parenting time.” 750 ILCS 5/602.7(b)

Always be the first to prepare and propose a parenting plan.  The other parent will often not even prepare their own parenting plan and just send back proposed amendments to your parenting plan.  So, that means you’ve already got almost all of your entire parenting plan entered by agreement. 

In reality, I’ve been practicing family law for 15 years and I’ve found that 50% of people will just sign any document that is remotely fair just to get the hassle over with and avoid further conflict.  So, again, be the first to prepare a parenting plan.

If the other parent doesn’t agree to restrictions on smoking, there are still ways to get restrictions on smoking in your final parenting plan.

Including Smoking Restrictions In An Illinois Parenting Plan When The Other Parent Insists On Smoking.

Just because there’s nothing in the Illinois Marriage and Marriage Dissolution Act about smoking and your spouse doesn’t agree to not smoke in front of and around the children doesn’t mean you can’t force language into your parenting plan that restricts smoking.

Just quote other Illinois statutes that discuss the evils of smoking in your parenting plan.  

“Secondhand tobacco smoke causes at least 65,000 deaths each year from heart disease and lung cancer according to the National Cancer Institute. 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 and adults. Secondhand tobacco smoke is the third leading cause of preventable death in the United States. Illinois workers exposed to secondhand tobacco smoke are at increased risk of premature death. An estimated 2,900 Illinois citizens die each year from exposure to secondhand tobacco smoke.” 410 ILCS 82/5

An Illinois divorce judge can’t say that a valid Illinois law cannot be part of a parenting plan.

You can even quote the criminal law that forbids smoking in a vehicle when there’s a child.

“A person shall not smoke in a motor vehicle, whether it is in motion or at rest, if a person under 18 years of age is in the vehicle, regardless of whether the vehicle’s windows are open.” 625 ILCS 5/11-1432

After you get a judge to concede that the Illinois law, itself, should be included in your final Allocation Of Parenting Time And Parenting Responsibilities, you can probably include any prohibition on smoking.

Prohibiting Smoking Around Children After Your Allocation for Parenting Time And Parenting Responsibilities Is Already Entered.

If you managed to get anti-smoking language in your parenting plan and the other parent subsequently smokes in front of or around your kids, that parent just defied a court order.

Defying a court order is serious business in an Illinois family law court.

The parent seeking to enforce the order can file a Petition for Rule to Show Cause for Indirect Civil Contempt of Court.

When accused of violating a court order in Illinois, the violator has burden of proving they did not violate the order and if they fail to do so, they must pay the other party’s attorney’s fees

The penalty for violating a court order is anything from a reprimand to jail

If you don’t have smoking restrictions in your parenting plan then you can still file a motion to restrict the smoking parent’s time with the children until they can finally stop smoking in front of or around of the children.

“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)

Let’s be honest, smoking a cigarette in front of a child is not the end of the world. However, filing a motion to restrict parenting time because of smoking will probably cause the judge to consider implementing including some anti-smoking language in an amended allocation of parenting time and parenting responsibilities.

Vaping In Front Of A Child In Illinois

Vaping is new.  Vaping is so new that it’s not even included in the brand new Illinois statute that prohibits smoking in cars with kids (it goes into effect on 6/1/2020)

“”Smoke” means to inhale, exhale, burn, or carry a lighted cigarette, cigar, pipe, weed, plant, regulated narcotic, or other combustible substance.” 625 ILCS 5/11-1432

Here’s the thing about vaping…who knows what’s in that vaping device.  In fact, it’s probably marijuana.

File a motion to modify parenting time based on the vaping and watch your child’s other parent try to explain to a judge that breathing vaporized god-knows-what is a good idea. 

Smoking Marijuana In Front Of A Child In Illinois

Yes, marijuana is legal at the local level here in Illinois.  No, you cannot smoke marijuana in front of your children in Illinois.

You cannot smoke marijuana or any other non-prescribed drugs while your children are in your care. 

If there’s even a suspicion that you are using drugs while exercising parenting time in Illinois the courts will issue an order “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” 750 5/603.10(a)(5)

Drugs are a serious issue in an Illinois divorce or parentage action.  It does not matter that the law just recently changed.  The family law judges in Illinois are still the same judges that as when marijuana was illegal last year.

What If I’m The Parent Who Smokes?

If you’re the parent who smokes and your children’s other parent is objecting to you spending time with your children because of your smoking, do the following:

  • Quit smoking. When there’s no problem, there’s no problem.
  • Try to quit smoking.  The judge and the other party get it, quitting smoking is hard.  You can try to quit smoking indefinitely.
  • Smoke outside.  Your landlord probably doesn’t let you smoke inside. If you own your own house, you shouldn’t be smoking in your own property.  Honestly, smoking outside is probably enough to resolve the whole issue.  The average Illinois family judge is well over 60 years old and remembers when most people smoked. 

Life Insurance, Smoking And Divorce in Illinois

Almost every divorce has a clause in the final documents requiring a parent with an obligation to have a life insurance policy.

That life insurance policy will list the other parent as the beneficiary.

After all, if a parent should die, the children will still need support and the surviving parent will be the one raising the children.

Life insurance for smokers is usually three to four times as expensive as it is for non-smokers. Smoking is a really expensive habit after an Illinois divorce.

If you’d like to discuss second hand smoke and your children’s custody, contact my Chicago, Illinois family law office to talk with an experienced Chicago divorce lawyer.