Jailed for Smoking


Reader Brian Trdina points to this case of a woman jailed for smoking around her kids (which ran afoul of a custody settlement with her former husband):

A woman was sentenced Thursday to 10 days in jail for defying a court order not to smoke around her children. Tamara Silvius was banned last year from smoking around the youths, now ages 8 and 10, as part of a custody arrangement with her ex-husband. She allegedly violated the order during a trip to South Carolina for Thanksgiving. For that, Silvius was fined $500 and was given a 10-day suspended sentence on the condition she not do it again.

Whole thing here.

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  1. Did more research (slow day at work today)

    She did NOT enter into a contract; the judge said “Do this or you can’t see them.”

    She is the only one forbidden to smoke around the kids; her ex-husband is still allowed to.

  2. I’m sort of agnostic on this particular case.

    On the one hand, she signed the contract.

    On the other hand, I’ve seen enough custody fights from the inside (my parents fought 2 very nasty ones) to know that the contents of a custody agreement are not always “freely entered into.” Yes, yes, both sides signed it. But it’s usually signed because one or both sides are tired of fighting (or simply too broke to continue paying the lawyers), not because both sides really agree much on the outcome. Not that adults shouldn’t take responsibility for things they sign under tough circumstances, but let’s not kid ourselves into thinking that these agreements are part of a sober, deliberative, and calm negotiating process.

    As to whether such a contract on highly personal behavior should be enforceable in the first place, I have mixed feelings. On the one hand, I don’t want an activist judge disregarding contracts that he/she doesn’t like. On the other hand, there is something to be said for the notion that a court will refuse to enforce a contract if it would require the gov’t to closely monitor certain personal behaviors. But that opens up lots of cans full of worms, so maybe I’ll avoid going any further in that direction.

    From what Jennifer’s dug up on this, it sounds like the father is a jerk who was able to squeeze his wife into putting some pretty strict terms in the agreement largely to cause her misery. That doesn’t automatically mean that it shouldn’t be enforced (she did sign it, after all) but I still have the right to criticize the jerk.

    As to which gender has it worse in custody fights, here’s my own take based on very bitter experience: Some people on this forum have suggested that courts are stacked against men. To the extent that men have a hard time actually winning the case in the end that is probably true. However, to “make up” for the inequity, the courts allow men to make life hell for their ex-wives. Men can’t actually win these cases, but they can make their exes suffer.

    Which is obviously a shitty way to run a court system. My father, the vile man that he is, could never win even in a fair fight. Even if the courts weren’t stacked against men he still would have lost. But if the system was fairer on both sides he wouldn’t have been able to hurt us so much. He never had any chance of getting a favorable ruling, but he could drag it out long enough to drain my mother’s bank account (he could afford to spend money lawyers, she couldn’t).

    Of course, if courts were sensible then what would we have to complain about? 🙂

  3. And after posting my message I see Jennifer’s message saying that she didn’t sign any contract.

    I think I’ll sit this one out from here on until I see more info.

  4. Jennifer,

    I think Joe’s point is that it’s commonplace for otherwise perfectly legal activities to become prohibited based on context and divorce proceedings, never known for their prettiness. Neither Joe’s nor my hypotheticals were meant to say anything about an equivalence of degree but rather an equivalence of principle.

    Anyway, since you RTFA, you’re ahead of me on that. Maybe it’s an unfair ruling. But since she’s also forbidden from drinking around the kids, this is clearly not a simply case of anti-smoking sentiment gone amok. (Nannyism in general gone amok, that’s still a possibility…)

  5. I did read the article (it’s a very short article), and this is a brief excerpt:
    “Tamara Silvius was banned last year from smoking around the youths, now ages 8 and 10, as part of a custody arrangement with her ex-husband.”
    I don’t know exactly how these things work, but that sounds to me like she entered into a voluntary contract with her husband, enforced by the judge, regarding the terms of their childrens’ custody; and one of those terms was that she wouldn’t smoke around the kids. She may not have been happy with it, but I don’t see anything in the article suggesting it wasn’t voluntary. The Times-Dispatch article makes it sound less voluntary, but it’s still not completely clear whether he was enforcing his own ruling or a custody agreement.

    On a side note, the Times Dispatch article explicitly says what kind of cigarettes she smokes (Baileys Menthol). Why would they do that? Is it relevant to the secondhand smoking argument? Does it have to do with stereotypes of different smokers?

  6. Reason’s version of libertarianism tends to consider that the right to use drugs trumps all other considerations. Piddly little things like “contract enforcement” are of little concern when truly earth-shakingly important things like “smoking a cigarette” are at stake.

  7. Dan-
    Again, let me point out that it wasn’t a contract but something inflicted by a judge; being told “do this or you’ll never see your kids again” is not a free-will decision. Hell, if I kidnap your kids and hold them for ransom I don’t think anyone can say that you gave me the money “of your own free will.” Or do you believe otherwise?

  8. Although I have mixed feelings on the case (and reading the articles hasn’t completely clarified things for me), I love how some posters are saying “She’s not in trouble with the law for smoking, she’s in trouble with the law for violating a court order to not smoke, which is completely different.”

    And if their guns are ever confiscated by the cops, will they say “I wasn’t in trouble with the law for owning a gun, which is my right. I was in trouble with the law for violating the law against owning a gun, which is completely different”?

  9. I think the question is: Is a contract enforceable if it is made under duress? Being threatened with the loss of your kids would fit into that category.

  10. Jennifer,

    That formulation would invalidate ALL divorce settlements involving custody.

    Try again.

    Look, if this “order” was made by the judge to fulfill his own agenda, it was clearly wrong, no matter WHAT he ordered her to do and no matter WHAT the consequences (as long as there were any). If, OTOH, it was part of a give and take process that included concessions pried from the hub as well and signed by both parties when they had a choice not to, I don’t see how it’s necessarily out of line to enforce the agreement. Remember, this is not a case of the State abducting children, this is a case of two people with ostensibly equal claim to the children fighting with EACH OTHER. If the hub is violent, Jennifer has a good point that the mother might be getting the shaft, though A) I would need to know more about the case and the situation, and either way, B) that’s an entirely different issue than whether a divorce agreement stipulating no smoking ’round the kiddies can or should ever be enforced. Although I loathe making generalizations about the Reason staff, Dan might be onto something regarding Gillespie’s interest in blogging this from a critical POV without investigating the details, which are clearly critical.

  11. “I think the question is: Is a contract enforceable if it is made under duress? Being threatened with the loss of your kids would fit into that category.”

    Based on that definition of duress, a whole lot of custody agreements would be unenforceable. Presumably each side of a custody dispute regularly makes compromises they’re not happy with so they can see their kids for some portion of the time. Just because they don’t like it doesn’t mean the contract was not voluntary or was made under duress (at least by a narrower and more reasonable definition of duress).

  12. Jennifer, being threatened with not being able to house and feed them counts as duress, too. At least in my book. But that’s for another day.

    I see an enormous difference between smoking in a kid’s presence and putting him in fear for his life. But your newfound appreciation for judgement calls, rather than the “Is it legal?” test you suggested earlier, is a welcome dose of common sense.

  13. Again, let me point out that it wasn’t a contract but something inflicted by a judge; being told “do this or you’ll never see your kids again” is not a free-will decision.

    You appear to be operating under the delusion that children belong to the mother, and the father has absolutely no right to them at all. In reality, both parents have an equal claim on the children. The mother voluntarily entered into a contract that detailed how their conflicting claims would be resolved. She then violated that contract and got punished for it.

    In any event, this is a woman who thinks her drug habit is more important than her children. How anyone could feel the slightest bit of sympathy for her is a mystery to me. I guess it’s par for the course for this forum, which tends to have a “drug users are, by definition, right in all that they do” mentality.

  14. Dan,

    Now you’ve tilted the boat way overboard in the opposite direction!!! Maybe, just maybe, she considers her children the most important thing in her life yet desires to take a drag in the hopes of not getting caught as well?? The two are not mutually exclusive!! Blowing smoke straight in a kid’s face is a bad thing to do but I fail to see how smoking in their general vacinity is any more than a trifle at worst.

    I was tempted to continue, but Dan may just be trolling, and he’s certainly being obviously ridiculous enough to be suspected as such, so I’ll drop the matter there…

  15. She wasn’t jailed for smoking around her kid, she was jailed for contempt of court.

  16. Agreed. Much more gray than the headline implies.

  17. Kip’s right. This thing’s been flying around the libertarian blogosphere like wildfire, but I just haven’t been able to care. It’s not as if she was smoking, and the cops pulled her over at random and arrested her. She had a direct court order not to smoke around her kids. She violated it. Oh, but all of a sudden, the knee-jerk bloggers all shout in unison, “see, before long, we’ll all be jailed for smoking!”

    We can argue about whether the court order itself was right or wrong, but that’s beside the point. She was jailed for, as Kip noted, contempt of court. If she had a problem, then she should have complained to the court and tried to get her custody arrangement amended.

    This is the kind of stuff that gives the lib blogosphere a bad name…makes ’em all look like a pack of hungry wolves just waiting for any mention of anything that sounds halfway fishy so that they can jump on it. SMOKING! PRISON! STOP THE PRESSES!

    Oy, folks, we have enough ACTUAL attacks on liberty to keep us all busy 24/7. Let’s not waste time crying wolf over this kind of nonsense.

  18. And exactly where were the kids while the cops were arresting the woman? Think maybe leaving them alone might be a hair more risky than smoking in front of them? Sheesh.

  19. Since when did the judge become her personal Health Nazi anyways? Last I looked, it’s legal (but admissibly stupid) to smoke in front of your kids.

  20. I need a number for a good lawyer. I want my mom arrested for smoking around me 25 some years ago. It’s those fucking Menthols. Maybe I need to sue the cigarette companies. I can also sue Ford for making their cars too air-tight (thus trapping the smoke in on cold days). Jesus, I can fuck over my mom AND get filthy rich.. oh wait, I mean, I WANT JUSTICE!

  21. We can argue about whether the court order itself was right or wrong, but that’s beside the point.

    Actually, that IS the point.

  22. Damn Evan, you just wrote my entire blog post for me! Hope you haven’t copyrighted it yet…

  23. To follow up on Russ D’s point, sure it’s true that it’s simplistic and disengenous to simply portry this incident as an arrest for smoking. But what that means is that the real news is the court order that made this arrest possible in the first place. Sometimes it takes the consequences of a court order to become manifest for people to get excited about the injustice of the original order. So that’s what’s happened here, and even if we should have ideally debated the court order when it originally took place, that’s what should really be debated now, not so much the fact that it was just enforced for the first time.

    To that end, I plead undecided pending more info. Of course it’s none of a judge’s business in general whether someone should smoke, and while I suspect that smoking a real lot real close to very young children isn’t the very best thing for them, it is still legal, as are many activities that aren’t “the very best thing” (as well they should be). OTOH, I also suspect a lot of otherwise legal activities are prohibited in divorce settlements, based more on parental disputes rather than societal issues. Anyone more qualified than me out there to comment on the facts of this case?

  24. From reading the article it sounds to me that the court is only enforcing a divorce/custody contract. One can argue whether the state should enforce a no smoking contract, but it seems to me that the libertarian/anarchistic crowd that reads reason should be much more in favor of this sort of thing than government mandated no smoking sections in restaurants, on planes, etc. If you don’t want to risk such a custody deal, then don’t marry a nonsmoker.

  25. Sounds to me like an ex-husband being spiteful. If court orders are forbidding parents to smoke in front of their children, what’s to stop parents from being required to “set a good example” in other ways? At this rate, I expect to see parents (mainly women) arrested for not brushing their teeth promptly after eating, not going to bed at a reasonable hour, not having enough vegetables on their plates, or watching television shows with no educational merit.

  26. OK, if you wanna debate the validity of the custody agreement itself…Is there any scientific evidence that this woman is willfully causing harm to her children?

    One can also look at it through the lens which I do: my mom smoked when I was a kid, then quit because we hated it so much.

    Now, to this day, I can’t touch a cigarette. I think it’s vile and disgusting. And it’s all because she smoked and made me hate it so much. So she actually did me a favor. You know, there used to be (maybe there still is) a treatment for smoking addicts where they lock you in something resembling a phone booth and then “smoke you out”, or overdose you on smoke, so your body will be repulsed by it later on (sorta like, you ever have a bad night where tequila is involved?).

    Is this somewhat similar? I’d love to see some sort of statistic on this. Because it’s entirely possible that this woman is doing her kids a favor in the long run.

  27. Jennifer, I think it had more to do with the issue of exposing the kids to secondhand smoke than it did “setting a bad example”. God help us if we start legislating requirements for parents regarding what types of examples they must set for their kids.

  28. Every time it comes to kids, the libertarian principles get very fluid. Should I be able to spank my kids? If so, where do you draw the line between spanking and child abuse? Does the child have the same right to be protected from physical aggression as adults do, even if said physical aggression is at the hands of their parents?

    And then some will come out with the “smoking is an otherwise legal activity” argument. Is spanking another adult to punish them for their misbehavior “legal”? Proponents of non-aggression would say no. But most sane people would say that they government should not lock you up for giving you kid a spanking.

    At the same time, the other side goes too far. Now there are commercials urging you to report anyone who you even suspect of “abusing” their child to the nanny-state…even if, presumably, it’s just some guy you meet on the elevator.

    So how much say should the state have in protecting the rights of children against aggression?

  29. Evan-
    There’s still no evidence that secondhand smoke causes any harm. Personally, if I were this woman then when I got out of jail I’d invite every smoking friend I had to come to a party at my house. But I, personally, would not smoke.

    As for your idea of a “smoke out,” I seem to recall reading somewhere that there is SOME evidence to suggest that kids who are exposed to secondhand smoke at an early age (NOT kids who out-and-out smoke) seem to get a little resistance which makes them statistically LESS likely to develop lung cancer at an early age, similar to the way kids raised in non-sterile homes are less likely to develop asthma and allergies. So really, this woman’s smoking may be doing her kids a favor.

  30. Everybody’s missed one BIG point here: we’re talking about Family Court, where the whims of judges and last-minute “changes” by lawyers are just as enforceable as any statute or freely-entered contract. And just to chap libertarian asses even further, it’s all in “the best interests of the children,” which, practially speaking, is whatever one or two lawyers can convince a single judge on any given day.

  31. Add to the fact that she was not “jailed”. It was a suspended sentence, given but not served unless she violates the terms of the sentence (in this case, smoking around her kids again).

  32. Jennifer,

    “I expect to see parents (mainly women) arrested for …”

    Why do you say “mainly women”? Is it your assertion that women are treated unfairly in (divorce) courts? I was under the impression (from hearsay) that it is the men who get shafted in divorce proceedings.

  33. Jennifer,

    interesting…so maybe it’s physical AND mental?


    yeah, sure, but “jailed for smoking” SOUNDS more evil, doesn’t it?

  34. Zorel-
    I say “mainly women” because so far, the only stories I’ve read about parents facing legal trouble over stuff like this has involved mothers; a few months ago there was a case where a woman was arrested on her wedding day because her fiance had spent the night with her, and her ex-husband said that wasn’t allowed.

    Actually, if that woman really wanted to piss off her ex-husband, she should just say “Fine. I relinquesh custody; YOU raise them, you prissy jerk.”

  35. Make that “relinquish.”

  36. Hey all, how about phil’s point?? I’m too lazy (and busy) to RTFA myself, but I see clearly what phil’s saying, and he’s saying the court is merely enforcing a freely entered contract. If this is the case, does it matter one whit whether there’s any scientific evidence implicating 2nd hand smoke in diseases or whether smoking out kids might actually help them? Because if you’re citing those reasons for not enforcing a contract, you’re the ones advocating an innapropriately activist court! Unless you claim there’s something “unenforceable” about this particular contract, the court has every obligation to enforce it! (Or unless phil has the facts about this wrong.)

  37. Fyodor-
    How do we know it was a freely-entered contract? Child-custody battles are often nasty; I have little trouble imagining one spouse saying to the other, “Agree to these terms or you’ll never see your offspring again!”

  38. I’d say that anything forbidding you to do something perfectly legal should be considered unenforceable. Notice: the kids were not forbidden to be exposed to secondhand smoke; only to see their mom smoking. What, mom can’t smoke even if everyone else in the room is puffing away?

    I’d bet this whole week’s pay that if we had background info we’d see that the husband is a control freak.

  39. So libertarians think there should be a law preventing people from entering into a private contract that libertarians disapprove of.


  40. Don-
    I’m not fully a libertarian, but no, I don’t think anybody should be told “If you perform this perfectly legal act, you will lose your kids.”


  41. Jennifer,

    How does “Agree to these terms or you’ll never see your offspring again!” differ from “Do what I say or you’re fired!” Just because a choice is difficult doesn’t make it less a choice. Re: “How do we know it was a freely-entered contract?”, I fully admit I don’t since I admit I didn’t RTFA. Did you? Re “I’d say that anything forbidding you to do something perfectly legal should be considered unenforceable,” keeping my money is legal, but when I contract to give it to someone in exchange for some good, it is no longer legal for me to keep the money once the condition has been met. Maybe you’re onto something here, but you need to think this trhough further. Either way, your proposal would have the effect of limiting the ability of people to make enforceable contracts, not necessarily pro-liberty there.


    Don’t know how serious you are, but Jennifer surely doesn’t speak for all libertarians. In fact, none of us do. Still, the question of whether all contracts are enforceable and whether we can ever “sign away our rights” I think is open for debate, although perhaps could stand a more nuanced analysis than Jennifer’s salvo entails.

  42. Don,

    This is a civil custody dispute. This is the courts issuing an edict that says, “in order to see your kids, you must do this, this, and this.” This is beyond a “private contract”. In effect, it is a dispute over property, and a third party is required to resolve the dispute…specifically because a private contract cannot be agreed upon.

    There is a difference.

  43. Fyodor-
    I’m sure you’ll agree that finding another job is somewhat less of a burden than giving up your children. Actually, I’m more interested in the ex-husband’s role in this; should he, or anyone, have the right to force his ex-wife to obey a special set of laws he’s devised, lest she lsoe her children? Again, I say no.

    Also, your example of a contract doesn’t work here: keeping your money is NOT legal when you have already agreed to turn it over in exchange for a good or service; that’s why you can’t legally hold on to your money after putting gas in your tank: you must turn over an amount of cash equivalent to what you put in your tank.

  44. Sheesh, I just about agree with everyone…

    I have to wonder though, apparently the chick’s cigarette habit wasn’t enough to keep the ex-hubby out of her bed (presumably the kids aren’t adopted) but NOW it’s a BIG problem.

    Jennifer, I think it’s safe to assume that this sword swings both ways.

  45. ‘I’m not fully a libertarian, but no, I don’t think anybody should be told “If you perform this perfectly legal act, you will lose your kids.”‘

    It’s perfectly legal to drink gin until you pass out on the kitchen floor every night…

    To throw dishes against the wall and should obscenities when you’re frustrated…

    To rip the arms off of stuffed animals in front of their young owners…

    C’mon, Jennifer, a little less with the knee-jerk.

  46. Joe-
    Do you really think smoking a cigarette is equivalent to ripping a kid’s toys apart? C’mon, Joe, a little less with the straw-man.

    Did a Google search on the story and learned more: She is also forbidden to drink alcohol around the kids. The reason she tried to get custody of them is because when they were living with her ex, the cops often had to go to the ex’s house to answer various domestic-violence 911 calls. Uh-huh. Her violent ex basically says “The kids will continue living in my violent hellhole of a home unless you agree to all these restrictions.”


  47. ol,

    Your post reminds me to make a point I was considering making for a while, which is that the original “contract” was actually the marriage (or if they’re not married, then their having a child together, which amounts to the same thing). And the Family Court was merely settling a dispute over the carrying out of their contract. Still looks and smells like the rule of law to me, and the legitimacy of the court’s stipulation of the smoking prohibition still depends on the facts of the case and the manner in which the stipulation was arrived at. If you’re against Family Court, are you also against Small Claims Court? Are you against the power of any court to rule on disputes between private parties?

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