Can a judicial body restrict a father's smoking habits?
Former partner continues to light up in enclosed spaces with shared kids in sight – is this legally enforceable to halt? Opinions vary on this matter: one verdict, two rulings.
Regardless of how unwarranted the former partner's actions might seem, a court typically lacks the power to restrict the custodial parent from smoking around the children. The German Bar Association's Family Law Association (DAV) cites a pertinent decision by the Higher Regional Court of Bamberg (Case No.: 7 UF 80/24 e).
Conflict over custody before the court
In this particular instance, the youngsters reside with their mother following the parents' split, with sole custody granted to her. The father retains visitation rights. In the courtroom, his objective was to request an extension of his visitation periods, while the mother sought to decrease them.
The court supported the mother and decreased her ex's visitation hours. As part of the ruling, it also stipulated that he was forbidden from smoking in the presence of the children during his visits within the apartment.
Post-appeal: Reduced visitation, no smoking ban
The father lodged an appeal against the entire decision – with modest success. His visitation hours were, in fact, cut back. However, the court rescinded one provision: it did not discover any legal basis for the prohibition on smoking around children, provided adequate ventilation was ensured – despite the restrictive nature of this regulation being beneficial for the children.
Custody courts possess the ability to establish the parameters of visitation rights, including specifying the type, duration, and location of visits. However, they do not have the jurisdiction to encroach upon other parental rights. This would only be achievable if the father's conduct represents a demonstrable risk to the child's well-being.
Nevertheless, the judges could not concur with the notion that smoking around children automatically poses a concrete and significant risk to their physical health. The undeniable fact that passive smoking negatively impacts overall health is not sufficient.
Despite the negative effects of passive smoking on children's health, the court was unable to impose a blanket smoking ban during the father's visits due to lack of evidence demonstrating a significant risk to the children's well-being. Furthermore, discussions about implementing divorce and separation agreements that include prohibitions on smoking in enclosed spaces with shared children remain complex and require careful consideration.
