Woman Sent To Jail For Smoking Around Kids

[goju]

"BOWLING GREEN, Va. -- 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.

But Silvius was back in court Thursday for violating the order a second time in June. Silvius, a pack-a-day smoker, claims the restriction violates her rights"
http://www.wftv.com/news/3650980/detail.html


Wow, this is either a case of incredible stupidity or incredible injustice. I let you decide.

[chiburb]

1. The same topic is in LBN...

And as you can imagine, it has brought out the whole gamut of opinion, including "she broke the law, lock her up", "the smoking police are at it again", "police state", "does she take them to McDonalds", etc.
My opinion is that if she agreed not to smoke around the kids as part of the custody battles, then she shouldn't have done it... especially after being caught once before. As a smoker myself, I do NOT see this as an infringement on smoker's rights. She could always go outside or the garage to avoid exposing her kids, or she could've pulled over once per hour on a long car trip.
Her habit is one pack/day, not too hard to avoid doing around the kids under any scenario...

My 2 cents.

[iverglas]

12. yup

My opinion is that if she agreed not to smoke around the kids as part of the custody battles, then she shouldn't have done it.

The order was part of the process of settling a dispute over custody. Both parents are entitled to a say in how their children are reared, and both parents are responsible for the children's health and safety. When they separate and their rights and responsibilities have to be divided up, they are both subject to the agreement or order that settles the dispute.

The father couldn't just up and stop paying support, and the mother couldn't just up and stop feeding the kids, because his obligations under the order (undoubtedly) include paying support, and her obligations, as a custodial parent, include feeding.

Her obligations also include not smoking around the kids. And yes indeed, it is not, I say as a smoker, impossible to defer smoking and/or smoke someplace else.

[DemWitch]

2. Incredible stupidity... and an obviuos violation of her rights

So, even if she went outside to smoke, and her kids came outside, she's have to ditch her cig? No, sorry... I could see maybe an order to not smoke in the house when the kids were present, or in the car, but around them period? Too vague...

[TX-RAT]

3. violation of her rights?

She violated a court order twice. I may not agree with the order, but that doesn't matter. She knew what she was doing.

[Jack_DeLeon]

8. Can courts order you to...

stop doing things that are not illegal to do?

[iverglas]

11. uh, garsh

Can courts order you to...
stop doing things that are not illegal to do?

What exactly is it that you imagine that the civil courts get up to when you're not looking? And in particular, the family courts?

[MrSandman]

13. Doctors only think they're God....

Judges are God.

[iverglas]

14. nonononon

What's the difference between a god and a lawyer?

A god doesn't think it's a lawyer.


Well, and rightly so, I might add. There are certain standards for being a lawyer, after all.

Next, I'll tell you my Arnold Palmer / Jesus of Nazareth joke, but now I have to go finish making dinner for watching in front of Big Brother.

[goju]

4. I agree, with all of you :)

She violated a court order, ridiculous as it might be. Ya cant do that!

But, it begs the question of what smoking "around" her children means. In the same room? House? Neighborhood?

The biggest question here is how she was nailed with the court order in the first place. Ex husband maybe had a grudge? Who knows, but it sounds fishy.

[chiburb]

5. You don't know, we don't know...

But we all sure have opinions about what we don't know!
:-)

(There is NO further info at the link, just more opinions.)

[Susang]

18. Google is my friend

See what I learned in just a few minutes? ;-)

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=78474#79736

[DoktorGreg]

6. Anti-smokers work hard to enable wife beaters

http://www.no-smoking.org/august04/08-11-04-3.html

What a truely sad time in America. True, this lady isnt a shining example of motherhood, but her ex it seems, is a wife beater. Im gonna assume he is a child abuser also.

So grats anti-smokers! You won one for the bad guys. Way to go!

[Lenape85]

9. Although I do agree that smoking around one's children....

...is quite dangerous, they still should not put children in with people that do worse things to them.

[seabeyond]

10. True, this lady isnt a shining example of motherhood

what an assumption................and judgement

i guess she isnt a shining example of motherhood cause she smokes. wow. any other trash on her. does she love, take care of, nurture teach, honest, embracing of, feed, bathe, do laundry of, participate in her children. i can think of a whole lot of others things that are way more indictive of whether she is a shining example of motherhood

[Pert_UK]

15. So let me get this straight....

Because a guy used to beat his wife it's OK for her to smoke around the kids, despite agreeing not to in a legal document?

That makes sense.

Tell me - have you ever considered working on the Bush campaign? They also have a knack for bizarre conclusions and non-sequiteurs.

P.

[iverglas]

16. interesting, though

So let me get this straight....
Because a guy used to beat his wife it's OK for her to smoke around the kids, despite agreeing not to in a legal document?

What it probably is, is an indication that the husband is a vicious individual, one of whose goals in life is to exercise all possible control over his wife and her life.

In that context, one might imagine that the no smoking around the kids stipulation was demanded less out of concern for the children's well-being than out of a desire to continue controlling his wife from beyond the divorce court.

A court examining a demand for such a stipulation would do well to look behind it at its motivation, just as it should with any other child-related demand (or allegation) in a disputed marriage breakdown. Insistence on having access to children, by a parent who really doesn't give a shit about the children, is not an uncommon tactic in a strategy to get other things one wants (like being relieved of onerous support obligations, or winning on division of assets issues), and allegations of mistreatment of children can, likewise, be a tactic in a strategy to punish a spouse or obtain other kinds of concessions.

Good lawyers, and insightful mediators and/or judges, are indeed important.

[Susang]

17. I wouldn't judge this case on the information given

And I would urge you to read the entire article posted, as it appears that both neither parents were going to be awarded any honors for their parenting skills. Also, I could find no accusation that he beat the woman accused of smoking around their children, he is suspected of beating his third wife, the 911 calls were from that household.

As I read this article (and others I found), it sounds like both parties need extensive counseling. I feel intensely sorry for the two children, but I'm having problem mustering up any sympathy for the parents.

snip:
Tamara Silvius said the issue arose when she petitioned for full custody of the children in 2002 because of a series of 911 calls for domestic disputes at the home of her ex-husband and his third wife. Sheriff's department records show six 911 calls originating from Steve Silvius' house within a three-month period in early 2002.

"The children were not in a good environment," Tamara Silvius said.When the custody matter came to court, she said, Murphy, Steve Silvius' attorney, raised the issue of her alcohol consumption."From there, it went to smoking. The whole 911 thing never came up," she said.A court-appointed guardian concluded that Tamara Silvius' farm home, where she lives with her boyfriend, was not a particularly clean or safe environment.

After an inspection, the guardian wrote she found the home to be "filthy and cluttered, to have many beer cans and bottles strewn about inside, and with such debris as broken glass and jagged metal scraps outside the home as to make entry dangerous."

http://www.no-smoking.org/august04/08-11-04-3.html

From two articles found from researching the topic:

snip:
Tamara Silvius was ordered to undergo a substance-abuse evaluation. She told an evaluator that she and her husband both drank early in their 14-year marriage, but that they stopped after counseling with a military chaplain in 1987. She indicated she continued to abstain, off and on, and last began drinking again in 2000.

A waitress at the All-American truck stop in Doswell in neighboring Hanover County, she has a "couple of beers a couple of times during the week" and "a six pack every other weekend," according to the evaluation. She and her ex-husband trade weekends caring for the children.

Steve Silvius alleged that Tamara Silvius consumed alcohol while driving, according to court papers.

"No," she said yesterday. "If I did, it was moving the truck from one side of the property to the other."

"I like to crack a beer, especially in the summer," said Tamara Silvius, who has smoked since she was 15.

The evaluator determined that she did not have a substance-abuse or substance-dependence disorder, though she had the potential to develop one.

Tamara Silvius believes the judge's ruling is one-sided because it proscribes her behavior, but not that of her ex-husband.

"I can't smoke around the kids, but he can," she said of her ex.

Does he smoke?

"No, but he can. It's not fair."

http://www.timesdispatch.com/servlet/Satellite?pagename=RTD%2FMGArticle%2FRTD_BasicArticle&c=MGArticle&cid=1031777227381

snip:
Mark A. Murphy, the Fredericksburg lawyer representing the children's father, said yesterday that it wasn't his client's wish that his ex-wife go to jail.

In fact, on an earlier occasion in which the children's mother violated the court order, Steven Silvius specifically asked that she not be jailed, Murphy said.

"He wants the children to spend time with their mother. He just wants them to be safe from cigarette and alcohol abuse," Murphy said.

Murphy wasn't in the Caroline courtroom yesterday, but he said he wasn't surprised that the judge imposed jail time.

"If you continue to violate a court order, a judge is not going to stand for that," he said.

Tamara Silvius, a pack-a-day smoker, claims the restriction violates her rights.

Murphy recalled an earlier hearing when Tamara Silvius was asked what she would do if she were required to give up smoking as a condition of seeing her children. "I think she amazed most people in the courtroom when she said, 'I guess I wouldn't see my kids, then,'" Murphy recalled.

http://www.fredericksburg.com/News/FLS/2004/082004/08132004/1465183

[iverglas]

19. heh

"I can't smoke around the kids,
but he can," she said of her ex.

Does he smoke?

"No, but he can. It's not fair."

Where have we heard that before ... oh yeah. Women can have abortions and men can't. No fair!

Anyhow, I do still wonder about the husband's reasons for kicking up a ruckus about her smoking. In the circumstances (and yes, one would want a fair bit more information about the circumstances on his side of the equation), it's not impossible that this was simply controlling behaviour. After practising a little family law in my time, it's not the last thing I expect to see. And the family courts really aren't just tools of us militant feminists, no matter what ya hear!

If only the children's interests (rights) were what always governed custody/access orders ...

Bad enough when parents assert their purely custodial "rights" against the children's interests -- but to assert a "right" to smoke in the presence of the children, that's just weird.

Granted, the entire rest of the world does it without getting into trouble. And that might make one wonder about the motivations of the husband and court -- but it doesn't actually make smoking around one's children a right.

[MrSandman]

20. I give up. Where?

Women can have abortions and men can't. No fair!

Can't say I've seen that one.

[Pert_UK]

21. "We will fight the Romans for his RIGHT to have babies......"

"You can't have babies Stan, you haven't got a womb...Where's the foetus going to gestate, are you going to keep it in a box?"

Etc.

P.

[iverglas]

23. you ain't bin around enough

Women can have abortions and men can't. No fair!
Can't say I've seen that one.

It's the usual preface to "so I shouldn't have to pay child support" ... often advanced by those who don't think women should be allowed to have abortions in any event.

Me, I figure that if someone wants to argue that he should not have to pay child support for a child he did not agree to have, he has not entirely unreasonable grounds for doing so. Women can have abortions and men can't. No fair! just isn't one of 'em. ;)

[MrSandman]

25. That is an absurd argument.

I will agree.

On edit: The father's choosing not to smoke does not preclude an ability to smoke. But then, what is 2nd hand smoke per EPA, Class @ carcinogen? Changes the argument also.

[Pert_UK]

22. Have to disagree with you Iverglas.......

Whatever the motivations, I'm afraid that someone who is banned from doing something that probably harms her children, but who does it anyway and whines when they get caught, doesn't get any sympathy from me.

So even if the husband was abusive and even if he put this clause in just to piss his wife off, it doesn't mean that she had to break the clause and give him a reason to drag her back to court.

It's pretty damn easy to avoid smoking around your kids if you really, really have to smoke while they're with you.

P.

[iverglas]

24. and you're disagreeing with me ... how?

What I said:

Bad enough when parents assert their purely custodial "rights" against the children's interests -- but to assert a "right" to smoke in the presence of the children, that's just weird.

Granted, the entire rest of the world does it without getting into trouble. And that might make one wonder about the motivations of the husband and court -- but it doesn't actually make smoking around one's children a right.

What you said:

Whatever the motivations, I'm afraid that someone who is banned from doing something that probably harms her children, but who does it anyway and whines when they get caught, doesn't get any sympathy from me.

Apples and oranges, I think.

Any sympathy I might have for her (I don't think I actually expressed any) would be for her qua victim of a manipulative, controlling ex-husband, IF that is what she was.

Not as "victim" of the consequences of violating the court order.

But still ... if the court order was improper -- which I am *not* saying it was, it's just that it isn't all that unusual for women to be treated inequitably by courts that make themselves into instruments of manipulative, controlling ex-husbands rather than of justice, or of protection for children's interests -- then she could have it overturned and not be liable for violating it. Just as people can have criminal laws overturned in the process of fighting charges against them and not be punished, even if they did break the law. And I think she could do that while opposing proceedings against her for violating the order, even if she hadn't appealed it, if it was truly a violation of her rights.

Example: some years ago in Canada, a manipulative, controlling (and violent) ex-partner obtained an injunction to prohibit his former fiancée from obtaining an abortion. Although her appeal was heard all the way up to the Supreme Court of Canada in record fast time, she still went to the US to have an abortion before the final decision, given the very narrow timeframe she was operating in. That is, she disobeyed the court order. The SCC overturned the injunction. She was not liable to any consequences for disobeying a court order.
http://www.lexum.umontreal.ca/csc-scc/en/pub/1989/vol2/html/1989scr2_0530.html

So even if the husband was abusive and even if he put this clause in just to piss his wife off, it doesn't mean that she had to break the clause and give him a reason to drag her back to court.

In Chantal Daigle's case, she did "have to" disobey the order -- in order to exercise her rights. Otherwise, her ultimate victory in the SCC would have been entirely moot -- it would have been too late to have an abortion, possibly at all, but at least as safely, both physically and emotionally, as earlier.

In the Lawrence case (Texas "sodomy" laws, which were ultimately struck down by the US SC)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102
the accused did have to break the law in order to exercise his rights.

While I did say

Granted, the entire rest of the world does it without getting into trouble. And that might make one wonder about the motivations of the husband and court -- but it doesn't actually make smoking around one's children a right.

... there is another point. While smoking around one's children may not be a "right" (since we don't commonly think of there being a "right" to do things that harm others), there is a right to equal protection under the law.

That is, if the court order was made (and note that I say "IF"!! -- because this is an hypothetical discussion here) based on improper considerations -- if it was the husband's animus against the wife that the court was guided by, and not the children's best interests -- then she wasn't getting equal protection.

It's pretty damn easy to avoid smoking around your kids if you really, really have to smoke while they're with you.

Yeah -- and it would be just as easy to avoid reading the bible in their presence, or having socialists or people of other races in your home while the children are there. But ordering people not to do those things might be problematic. And I know that *you* will not cry "apples and oranges" or "straw person" in response to that, because *you* know that I'm picking an extreme example to make a point. Smoking may not be on the same level as religion and politics, but it is something that people have a right to do, and that can kinda be seen, addictive as the activity is, as being "inherent" to the individual, like religion or a disability or sexual preference.

Yes, I am exaggerating. An addiction is indeed different in many ways from a mobility or cognitive disability or another inherent personal characeristic -- drinking and smoking around children isn't quite like using a wheelchair or expressing your sexuality (of course in ways that are appropriate around children). The harm is more objective and less a matter of opinion than in some other cases, and the activity can be refrained from at least in some cases. And of course the children's interests must prevail anyway, at least where those interests can be determined based on something other than opinion.

But given how few (any?) people are ordered not to smoke around their children in custody/access orders in the US in a year, one really does have to wonder. Courts have to consider children's best interests regardless of what parents have to say: if a parent seeking custody planned to rear the children in a shack in the middle of a toxic waste dump, then even if the other parent were fine with it, the court would have to intervene. So if smoking around children is so contrary to children's interests, why aren't courts ordering *all* parents not to do it?

I'm being slightly facetious. There are tons of things that parents do that is not in, and in fact is contrary to, their children's interests. Many of them are matters of opinion (homeschooling ...), some are not. Some of them are "that's life" kinda things: nobody's life is perfect, and parents in custody/access disputes can't be held to standards way above what other parents are held to.

I think that smoking is a bit borderline. I'd certainly want my ex-partner not to smoke around my kids, if I were in that situation. I just wonder how come it became an issue for this particular ex-husband only *after* he and his wife were no longer cohabiting, since this seems to be the case here.

[gatlingforme]

7. She should fire her lawyer and sue to get her money back for

incompetence on the lawyers part. Obviously a good lawyer who knows the addiction of smoking (who does not) and the anxiety associated with one's "new" life after divorce --should never have let this be a stipulation.