I came very close to filing a child custody modification

[dolfan]

But, I knew it'd never work and didn't want to waste my client's money. I had researched quite extensively on my own time, too. I was ready to make law, but my client wasn't ready to spend the money.

Here's the story from the UK.

http://www.bbc.co.uk/news/health-10896335

[Brian]

Hey dolfan, if I may ask, what was the connection to your client and the article? Do you have a client with a smoking ex? (who smokes around the kids?) or do they eat and drink out of control in front of them? just trying to make a better connection with your point. thanks

[dolfan]

Yes, that was the issue. Essentially, ex-wife had custody and had two daughters, one of whom had asthma. Ex was actually (and still is) a teacher. She smoked in the house, in the car, etc. My guy was a non-smoker. There were other issues, too, mind you, but this one was a particular concern of his that I think is one of the few things that ought to actually be a law --- don't allow adults to coop up kids in a house or automobile and smoke there. Kids can't just leave. They can't jump out of the car. In fact, the law requires that you restrain them in the car. Really sadistic rule, IMO, that says you can smoke in a car with your seat-belted child in it. If not outlawed, it ought to be a heavy issue in any custody matter where there is evidence of respiratory illness in the child. There were either two cases or just one that I found in all state appellate courts that addressed that issue, and my recollection is that the court(s) sidestepped it pretty much.

You can't text, but you can ignite and emit toxic fumes with your captive child in tow. Funny thing is, no law will actually stop people from texting (how you gonna tell if their texting or dialing?? why not just make handheld phones the offense??....) but if you take a few kids away from their smoking-in-the-car parents and give them to the non-smoking parent, at least some behavior will change. Won't stop it, but it'll absolutely matter for those kids whose custody gets transferred and it'll dissuade some other more conscientious but still ignoramus parents from at least smoking in the car with their kids present.

[Full Quiver]

I thought legislators and congressmen made laws and the problem was/is lawyers and judges making laws.

[dolfan]

Well, in Alabama and in most states the legislatures specifically make the courts the determiners of best interests of the kids in custody issues. To the extent those determinations must be made by the courts, yeah, the courts make the laws. That's always been the case, though, FQ, since the founding and before, way way back to merrye olde England. "Common law", and all that. But, as for best interests determinations, yes, the legislatures put that call into the laps of the courts to make on a case-by-case basis.

[MacUser]

And this is the view of our resident Libertarian?

[dolfan]

Which part isn't libertarian?

If I'm 8, I have a right to breathe freely, don't I? Does the fact that I'm 8 mean I have to be subject to my parents' right to smoke in a confined space where I am restrained?

I see a big difference in telling grown folks that they can't smoke in a restaurant and telling them they can't do it in a car with kids present. You can pick which restaurant you want to patronize based on their options for smoking so you can engage in it or avoid it as your tastes suit you. A child cannot do that with its' parents' choices, though. The captive child is the most innocent and vulnerable position imaginable. Restraining the harmful activity for a period until the child is clear of the smoky air environment is a reasonable restraint on liberty. It doesn't punish the smoker for smoking freely, but it does prevent (in theory, of course) the child from suffering from whatever negative effects of 2nd hand smoke there are where he is without power, right or means to avoid that harm. This is a classic example of where libertarianism favors governmental action and it is a very limited exercise of governmental power; this would be especially so if the government hadn't already strong-armed its way through the lives of smokers on the whole.

[mavislb]

And not is second-hand smoke extremely dangerous, now they are saying that third-hand smoke is harmful as well to children. That's the smoke that lingers in your hair and on your clothes. I know when my children were still home I would come home from work and my son would tell me I stink. Sometimes I couldn't even think about going to bed and laying my head on my pillow until after I'd bathed and washed my hair. I feel so sorry for children with parents/grandparents that smoke and do it in the same room/car/whereever.

[MacUser]

:D Which part isn't libertarian?

... A child cannot do that with its' parents' choices, though. The captive child is the most innocent and vulnerable position imaginable

Listen I agree with you here on principle here. Especially with proven medical situations. This should somehow separate the offense.

It's just that this slope is extremely slippery based on your mass proposal of action. Remove one simple word.. and replace it with another magazine story, media article, hype fear problem of the day driven by an agenda.

Today it's smokers.. tomorrow it's going to be Fatty Foods ( Going to McDonalds, KFC, Burger King! You'll be fined when you get your happy mean), Driving in a SUV or non electric.. ( harming the environment beyond the child's carbon footprint control because they have no choice to go Green), or heaven forbid.. "Biblical Hate Speech". ( The Child is being taught values that are outlawed as outlined in Hate Speech legislation.. designed to PROTECT US ALL... ( We all could insert agenda, after agenda here and trust me they are just waiting to play on your fears )

The idea of going further and increasing the problem because we already have one just doesn't solve anything. The worst offenders will still do it and get ticketed / jailed and the only success will be the open door it creates.

At some point we are going to have to figure out another way to address these "lifestyle" choices ( if not medical/life threatening ) rather than being a NANNY state. Our bloated system as you know.. can't handle all the good intentions either.

[dolfan]

It is a slippery slope, indeed. Not many doctors diagnose kids with carbon exposure from being driven in gas-powered automobiles but they do frequently see smoking-aggravated (if not smoking-caused) asthma in children. Myself, I think it is a very unique situation that the law requires you to restrain your children, requires you to safely transport them when you transport them at all (i.e., not be drunk or under any drug influence behind the wheel, have all the doors on the car and closed, don't let them ride in the back of pickup trucks in many states now -- something we all did as kids, etc.) but at the same time says "Okay, smoke 'em if you got 'em while you have that kid strapped in on our command." There aren't many analagous situations that I can think of right off hand. I don't see the similarity with feeding a kid fatty foods although who needs a similarity when we're talking about big government? I see your point and it's right, and it could be used as a stepping stone to more intrusive government policy. I do think, though, that this is a very limited and narrow situation, maybe so limited and narrow that it won't ever be tackled head on by legislatures specifically. I would like to see a court base a custody decision on it though just for its precedential value.

[Full Quiver]

I'm not arguing that the child was mistreated but I don't like lawyers, outside of congress, amking laws in courtrooms. case law stink!

[dolfan]

You'll have to overturn about 800 years of English history to arrive there, FQ. Everytime a court makes a decision, law is made. It may not be new law, but often enough it is. And, that's the way the system was designed before we got over here, and the way it was built and runs now. The states were sovereign and each one designed its courts to do precisely that -- law-making.

[Kevin]

Dolfan, we had the same problem with Kalei's ex. Both girls have asthma, and he'd smoke in the car and house with the window rolled up. Shouldn't that be some type of criminal child negligence or something? We had to keep the girls doped up on their meds all the time down there.

Since we got them out of that, they've only needed there meds one time and that was during a cold in cold and flu season.

Of course, that was the least of our worries with this idiot. He actually WAS guilty of criminal child negligence. Dropped one of the kids off at a house where nobody was home, took off with the other, and then called us to pick her up after he was long gone. She was bawling her eyes out when we got there.

That wasn't the only problem there either. It just piled up and piled up. This guy was seriously wired wrong or something.

Had reason to believe he was dealing drugs. Maybe he was strung out on some of his own stuff or something???

[MacUser]

I see your point and it's right, and it could be used as a stepping stone to more intrusive government policy.

Thanks for agreeing with my point.
Also.. it's not could be.. WILL BE. You and I both know this.

We have to think of a better way to attack this... or be able to narrow it medically as described.

Or it could be No TOYS for any of us in the future.
http://www.sfgate.com/cgi-bin/article.c ... 1D5QFV.DTL

Yeager said he hopes the law will inspire cities and counties across the country to follow suit like "ripples that create a wave.

[MacUser]

don't let them ride in the back of pickup trucks in many states now

Yes.. My deputy sheriff friend just verified. In MS as long as they are 8 years and older... get in the back Kids!