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Custody and Smoking

Does your spouse smoke around your child?


This page tells nonsmokers how to deal with problems of custody and smoking, and specifically how to protect your child from the deadly dangers of secondhand tobacco smoke by raising smoking as in issue in a custody dispute and/or post-custody-determination hearing.

Are you involved in a dispute over custody, and your spouse smokes in the presence of  your child and/or permits others to do so?
Are you separated or divorced, and worried about the health of your child when he or she is with the other parent who smokes in the child's presence?

If so, you should know the following:
* In at least 18 states, courts have ruled that subjecting a child to tobacco smoke is a factor which should be considered in deciding custody.
* No judge and no court has ever ruled that subjecting a child to tobacco smoke should be ignored in deciding custody.
* In thousands of cases, courts have issued orders prohibiting smoking in the presence of a child, especially in cars.
* In some cases the orders prohibit smoking in a home 24 (or even 48) hours before the child arrives.
* In some cases, parents have lost custody or had visitation reduced because they subjected a child to tobacco smoke.
* Existing court orders regarding custody, visitation, etc. can often be modified if a child is being subjected to tobacco smoke.
* As the evidence of the harmful effects of tobacco smoke on children increases, it should become easier to raise this vital health issue.
* Even if no court in your state has yet ruled on this issue, you should still raise it and use the legal precedent created by these many decisions.
* Courts determine the legal custody and residential arrangements in accordance with the "best interests of the child." This includes medical health.

An increasing number of parents are becoming concerned that their children are being subjected to the deadly dangers of secondhand tobacco smoke in situations where the other spouse has full custody or where the other spouse shares custody. Others wish to raise the issue of smoking in ongoing or contemplated custody proceedings.

Government is becoming increasingly aware of its duty to protect children, especially those that come "into the system" through divorce or the foster care system. In 2003, Maine passed a groundbreaking law forbidding foster parents from smoking or allowing others to smoke in their homes or private automobiles. Even inmates have been afforded protection from the health effects of secondhand smoke - children certainly deserve no less.

Many courts have already decided that smoking should be a factor in custody decisions. Judge William F. Chinnock, visiting Judge to the Ohio Supreme Court, said in a recent law review article that a "considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court's care fails those children whom the law has entrusted to its care."

Because these matters are often very pressing and cannot wait, ASH has released this preliminary report on custody and smoking. It includes some ASH press releases on the topic, followed by a digest of some of the important judicial decisions (precedents) in this legal area. It also includes links to a number of custody-and-smoking written judicial opinions regarding this topic.

Please also understand that neither Action on Smoking and Health (ASH) nor any of its attorneys can advise you regarding a custody or other legal proceeding, and that the information on this and related ASH pages is for general guidance only. Please share this information with your attorney, and be guided by his or her opinion. Only a skilled attorney can interpret judicial opinions, and advise you on the applicability to your particular situation.

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THE FOLLOWING ARE ASH PRESS RELEASES WHICH RELATE TO THIS ISSUE

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FOR IMMEDIATE RELEASE:

Wednesday, March 9, 2005
Secondhand Tobacco Smoke More Dangerous Than Smoking Itself
Implications for Women Especially Frightening
Scientists conducting a study on the effects of Environmental Tobacco Smoke (ETS) say that secondhand tobacco smoke causes breast cancer and that it is more likely to cause breast cancer in young women than smoking itself.
"This study could have a broad impact on public policy, and lead to even tougher anti-smoking regulations and more lawsuits," says law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH). The study was conducted by scientists for the California Air Resources Board.
Although recent studies have linked smoking to breast cancer, this is the first study to show definitively that secondhand tobacco smoke is a cause of the dreaded disease that kills 40,000 women each year in the U.S.
Breast cancer is now the second leading cause of cancer deaths in women, behind only lung cancer. It kills more middle-age women than any other disease. Every fifteen minutes at least three women will develop breast cancer, and one will die.
Professor Banzhaf stated that this study will have a major impact on women's health, and it makes it clear that women should be especially careful to avoid any situation in which they are exposed to tobacco smoke. This is particularly true for women who have a higher-than-normal risk of contracting breast cancer, including women with long-term ETS exposure, especially young women.
"Citing Environmental Tobacco Smoke [ETS] exposure as a known cause of breast cancer could have potentially devastating effects on the tobacco industry as we know it, and induce far more successful legislation to protect non-smokers from the life-threatening effects of secondhand tobacco smoke," says John Banzhaf.
There have been many successful legal actions relating to lung cancer and other diseases caused by tobacco smoke pollution, but this new research opens the door to law suits for breast cancer against companies which still permit smoking in workplaces, especially if the sympathetic young women plaintiffs can show that they have never been exposed to tobacco smoke in their homes while growing up or after establishing their own residences.
Banzhaf notes that the U.S. Supreme Court has recently upheld a jury verdict in a wrongful death action caused by an exposure of only several hours to secondhand tobacco smoke, and that the Centers for Disease Control have also warned that even brief exposure to tobacco smoke can cause death.
"The fact that breast cancer alone is perhaps the most feared type of cancer in women could very well be a powerful new warning tool which could be used by anti-smoking organizations, as well as those arguing for more restrictions on smoking," said Banzhaf.
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FOR IMMEDIATE RELEASE
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Wednesday, June 16, 1999
Secondhand Smoke Endangers 1/2 of World's Children
S.I.D.S. Deaths and Brain Damage Cited by W.H.O.
Secondhand tobacco smoke endangers the health of almost half of the world's children, says the World Health Organization, putting an estimated 700 children at risk of everything from SIDS deaths to brain damage.
The report says that exposure to tobacco smoke significantly damages the health of children, increasing the likelihood of them contracting respiratory ailments such as bronchitis, pneumonia, and asthma.
It said that infants of mothers who smoked were five times more likely to die from "cot death" (S.I.D.S.) than babies of nonsmokers.
It also cited evidence that secondhand smoke affected the brain development of children who were exposed to their parents' smoke, and accelerated the onset of heart disease.
Despite claims by the tobacco industry that evidence of the harmful effects of tobacco smoke is mixed, this is only the latest of many reports by governmental and medical organizations which has reached the same conclusion.
"Children are the most susceptible and most defenseless victims of tobacco smoke," said professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH).
"Adults may have at least the limited option of avoiding workplaces, restaurants, and other public places where there is smoking, but no 'freedom of choice' argument justifies subjecting young children to these dangerous risks."
"Perhaps that's why, in at least fifteen states where the issue has so far been raised, the courts have held that parents who subject their child to tobacco smoke risk losing custody," says Banzhaf.
"Parents have no more right to expose their children to tobacco smoke than they do to expose them to asbestos, benzene, and other substances which have likewise been classified as known carcinogens."
CLICK HERE TO READ THE COMPLETE TEXT OF THE WHO'S REPORT

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FOR IMMEDIATE RELEASE:
Monday, November 10, 1997
Millions of Kids Unnecessarily Exposed To Cancer-Causing Chemicals at Home
Centers For Disease Control Estimates More Than Fifteen Million Are At Risk
A new study by the Centers For Disease Controls (CDC) concludes that more than fifteen million children are unnecessarily being exposed in their homes to chemicals which have been proven to cause cancer, and to kill more than 100 children each year and send millions more to a doctor.
This occurs because most smokers who have a child at home nevertheless smoke inside, rather than going outside to a porch, garage, or other location away from the child, says Action on Smoking and Health (ASH).
According to a recent report in the Journal PEDIATRICS, secondhand tobacco smoke causes the following problems in children: between 136 and 212 deaths among children under 5 years of age from lower respiratory tract infections; 354,000 to 2.2 million episodes of otitis media (ear infections);
5200 to 165,000 tympanotomies; 14,000 to 21,000 tonsillectomies and/or adenoidectomies; 529,000 physician visits for asthma; 1.3 to 2 million physician visits for coughs; 260,000 to 436,000 episodes of bronchitis in children younger than 5 years of age; and 115,000 to 190,000 episodes of pneumonia in children younger than 5 years of age.
Years earlier the Environmental Protection Agency concluded that childhood exposure to tobacco smoke annually causes 150,000-300,000 lower respiratory infections like pneumonia and bronchitis; 7,500-15,000 hospitalizations; 200,000-1,000,000 asthma attacks; and 8,000-26,000 new asthma cases.
According to the CDC, one-third to one-half of all adult smokers have children residing in their homes, and in most cases they smoke in the home.
In at least fifteen states in which the issue has so far been raised, courts have concluded that subjecting a child to tobacco smoke in the home is a factor which can be considered in awarding child custody.
In some cases parents have lost custody of their children because they continued to smoke around them. In a much larger number of instances, courts have issued orders prohibiting smoking in the home when a child is present, says law professor John Banzhaf, ASH's Executive Director.
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FOR IMMEDIATE RELEASE
Monday, July 14, 1997
Parental Smoking Kills 6,200 Kids Each Year and Costs $8.2 Billion
But Law Is Finally Beginning to Crack Down on Major Form of Child Abuse
At Least Fifteen States Will Take Away Custody if Necessary to Protect Kids
A new study shows that parental smoking each year kills at least 6,200 children, causes 5.4 million serious ailments such as ear infection and asthma, costs $4.6 billion annually in medical expenses alone, and ultimately costs the American economy $8.2 billion annually.
"More young children are killed by parental smoking than by all
unintentional injuries combined," the researchers said in the July issue of the Archives of Pediatrics and Adolescent Medicine.
But states are finally beginning to provide protection against what some have called the most prevalent form of child abuse, say law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH).
In at least the fifteen states where the issue has been raised, courts have held that it is appropriate to consider whether a parent smokes around a child in determining whether they should be awarded custody, says Banzhaf.
"Most cases are resolved with the court entering an order prohibiting the parent from smoking around the child -- or sometimes even within the home or car -- sometimes for as long as 2 days before the child's arrival."
In cases where parents refuse to agree, or violate a court's no-smoking order, parents can and have in fact lost custody, he says.
And, in one of the most encouraging developments of all, the same protection against smoking in the home is beginning to be extended to children not involved in divorce and other proceedings where custody is an issue.
Increasingly it is possible for others concerned with the welfare of a child -- i.e., a doctor, a school nurse, a grandparent, or even a neighbor -- to file a complaint of suspected child abuse, neglect, or endangerment where smoking in the presence of the child creates a significant health risk.
This could occur where the child has asthma, hay fever, allergies, sinusitis, or other conditions which make them especially susceptible to tobacco smoke, says Banzhaf. Even recurrent ear infections might provide the basis for such a complaint, he says. At least three parents he knows about have lost custody of children because of complaints from outside the home.
This report, and others like it, are likely to trigger even more complaints, and provide additional basis for action by courts and by child welfare authorities. Action on Smoking and Health (ASH) helped develop the legal theories under which smoking can be raised as an issue in child custody disputes or in child abuse, neglect, or endangerment situations. It has participated or assisted in a number of those proceedings, and debated the legal and other issues in a number of forums.
States which have rules that parental smoking around a child may be considered in custody proceedings include: California, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York,
Oregon, Pennsylvania, South Carolina, Tennessee, and Texas.
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FOR IMMEDIATE RELEASE:
Monday, January 13, 1997
FDA About to Approve Nicotine-Detecting Kit
Which Could Have Many Potential Uses
The Food and Drug Administration is reportedly ready to approve for sale a kit which can be used by non-physicians to check to see if a person is a smoker.
It apparently works by detecting small amounts of the breakdown products of nicotine in the person's system, similar to tests now available to physicians which can be performed on blood, urine, or saliva.
A home test for nicotine could have a wide variety of uses, says law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH).
First, it could be used by parents who want to know if their child is smoking in time to take corrective action before the youngster is hooked on the nicotine.
Second, it could be used by insurance companies which offer reduced rates on life, health, and even automobile insurance for nonsmokers.
Employers who wish to save the $5000 a year or more it is estimated to cost for health and other costs of having a smoking employee could also use the test to weed out applicants who are smokers.
Smoking withdrawal programs could also use it as a way of verifying that a person hasn't smoked since the last meeting, in much the same way that Weight Watchers and other weight loss programs weigh participants in at the beginning of their meetings.
Employees such as bartenders or waitresses who wish to bring disability, unemployment, or OSHA complaints against the employer could use the tests to show that they are subjected to so much secondhand tobacco smoke that it is the equivalent of their own smoking.
And parents involved in custody battles could use this test - or a more sensitive one about to be introduced - to show that a young child had been exposed to tobacco smoke by the other parent.
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FOR IMMEDIATE RELEASE
Monday, January 13, 1997
Smokers May Lose Custody of Children as a Result of New Study
Decisions Already Denying Custody to Smoking Parent Likely to
Multiply In Light of New Evidence of Harmfulness of Tobacco Smoke to Kids
A new study documenting for the first time just how deadly tobacco smoke is to children is likely to prompt even more courts to deny custody to smokers, says the law professor whose work led to the growing trend, and to court orders which now prohibit all smoking in hundreds of homes.
Each year smoking in the home kills almost 300 children, seriously injures 300 more, causes more than 300,000 new cases of asthma, over 350,000 ear infections (including 5,200 ear operations), at least 14,000 other operations, and makes four million children sick enough to require a visit to a doctor, according to a new study by Dr. Joseph DiFranza in the journal Pediatrics.
Even before the release of this study, courts in at least a dozen states have held that a judge may deny custody to a parent who willfully exposes his or her child to tobacco smoke.
In most cases a loss of custody is avoided when the smoking parent agrees to the issuance of a court order prohibiting any smoking in the home, sometimes for days before a child is to visit.
In other cases, however, parents who exposed children to tobacco smoke have in fact lost custody, and the release of this new study is likely to accelerate this trend, says law professor John Banzhaf, Executive Director of Action on Smoking and Health
(ASH), a national antismoking organization.
"Any other condition or practice in homes which killed almost 300 children each year and made four million sick enough to require a doctor would be immediately condemned as a form of child abuse," says Banzhaf, noting that courts have begun to treat exposing kids to tobacco smoke in just that way. Indeed, in at least two cases, parents lost custody when a "child abuse," "child neglect," or similar complaint was filed by an outsider; in one case by a physician.
Professor Banzhaf says that such complaints are warranted in many cases by existing law, and urges physicians, school nurses, and even grandparents to file them where appropriate.
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FOR IMMEDIATE RELEASE:
Wednesday, May 22, 1996
Mother May Lose Custody Over Smoking, Even in Kentucky
Fifteen States Say Secondhand Smoke Should be Factor in Deciding Custody
New Study Says Smoke Annually Kills Hundreds of Kids and Sickens Millions
Even in Kentucky, a mother may lose custody of her two sons because she allegedly subjects them to secondhand tobacco smoke.
She now has primary custody of a six-year old son who has allergies and must get shots, and a nine-year-old who - like his younger brother - has frequent throat and ear infections. Her former husband is seeking primary custody, claiming that her smoking is a major factor in causing these medical problems, and other risks to the health of his children.
The case is hardly not the first, since in at least fifteen states courts have held that subjecting children to secondhand smoke can and should be a factor in deciding custody. These states include California, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Tennessee, and Texas.
Moreover, a recent comprehensive report based upon dozens of studies in major medical journals concludes that secondhand tobacco smoke kills between 136 and 212 kids every year from lower respiratory tract infections.
The report also blames adult smoking around children for causing: 354,000 to 2.2 million episodes of otitis media (ear infections); 5200 to 165, 000 tympanostomies (tubes inserted in ears); 14,000 to 21,000 tonsillectomies and/or adenoidectomies; 529,000 physician visits for asthma; 1.3 to 2 million physician visits for coughs; 260,000 to 436,000 episodes of bronchitis in children under 5 years of age; and 115,000 to 190,000 episodes of pneumonia in children younger than 5 years of age.
The Environmental Protection Agency (EPA) says subjecting young children to tobacco smoke causes: 150,000-300,000 lower respiratory infections like pneumonia and bronchitis; 7,500-15,000 hospitalizations; 200,000-1,000,000 asthma attacks; 8,000-26,000 new cases of asthma; increased middle ear effusion; respiratory symptoms of irritation; significantly reduced lung function; and a large increase in the risk of death from S.I.D.S. [sudden infant death syndrome].
ASH assists nonsmokers in custody disputes involving smoking.
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DIGEST OF SOME IMPORTANT LEGAL DEVELOPMENTS RELATED TO CUSTODY AND SMOKING
1. 1988, Roofeh v. Roofeh, ( NY Family Ct. , Nassau County, Mineola). Mr. Jahanshah Roofeh's attorney, Stephen W. Schlissel of Mineola, NY's Ruskin, Schlissel, Moscou, Evans & Faltischek, P.C.; Ms. Elizabeth Roofeh represented by Joel R. Brandes of Garden City, NY. Nassau County Judge Ralph Diamond in Mineola issued order forbidding Elizabeth to smoke in front of her husband and three children. Ms. Roofeh was also directed to confine her cigarette smoking to a small television room in the couple's Kings Point mansion. Neal Shayne, dean of the Academy of Law for the Nassau County Bar Association, said he believes the order was legal because it's not Mrs. Roofeh's rights but the rights of her family that were violated by her smoking. {Law Times & Wash Times 2/25/88}
2. 1988, Reeves v. Reeves, Pricilla Bullock (married name Reeves) complained about a judge's order restricting her from smoking in confined areas around her four-year-old son. Christopher Reeves is father of the child. Fourth Circuit Court Judge Bill Swann made the ruling on Friday about Bullock's smoking practices and said his decision was based on the child's welfare. Swann granted a request by the ex-husband's lawyer to prohibit her from smoking around the child in a confined environment, such as the home or in an automobile. Bullock plans to pursue legal action to reverse the ruling. { Knoxville News-Sentinel, 6/4/88}
3. 1988, Pizzitola v. Pizzitola, (TX). Custody awarded to smokefree father. {Smokefree Educational Services, 1/12/93}
4. 1989, Badeau v. Badeau, (LA). In LaPlace, LA, an appeals court upheld a lower court decision reducing a father's visitation rights because his smoking aggravated his child's bronchial problem. {WSJ, 10/18/90}
5. 1989, Wilke v. Wilke, (MO). Custody awarded to smokefree mother. {Smokefree Educational Services, 1/12/93}
6. 1989, in Denton, MD, a judge placed a three-year-old girl with severe asthma in a foster home because her parents ignored medical advice to protect the child from their tobacco smoke. {WSJ, 10/18/90}
7. 1989, Potter v. Potter ( MI Ct. of App.) (Lawyer's Weekly No. MA-2953 - 2 pages; 3 Mich. L.W. 1468.) An unpublished Michigan Court of Appeals decision involved a custody battle over a minor child who had respiratory problems. The ex-husband said the mother's smoking was harming the child's health. The circuit judge placed the child with the mother. The appeals panel affirmed the trial court because the father failed to present medical evidence on the smoking issue. {Mich.L.W. 956, June 24, 1991}.
8. 1990, Satalino v. Satalino, (NY Sup. Ct., Nassau Cty., No. 11440-86, Oct. 10). The New York Supreme Court said that the health risk posed by secondhand smoke in the home was a factor that 'must be considered, as would alcohol consumption for example, when viewing the suitability of a household environment in which a child is to be placed.' Nassau County decision pits Catherine Satalino, a one-pack-a-day smoker, against her husband, Martin, who kicked the habit. Mr. Satalino had argued that giving custody of their six-year-old son to his wife would expose the child to the dangers of secondhand tobacco smoke. Note: NY state Supreme Court Justice John F. O'Shaughnessy of Mineola wrote that smoking is 'one factor among the many that must be considered, as would alcohol consumption for example, when viewing the suitability of a household environment in which a child is to be placed.' Custody awarded to Mrs. Satalino, however, saying that other factors, including Mr. Satalino's prior drug addiction and continuing recovery, outweighed the smoking issue.
9. 1990, De Beni Souza v. Kallweit ( Sacramento, CA, August). Judge David Stirling ordered a woman (Anna Maria de Beni Souza) not to smoke in front of her five-year-old son; judge issued the ruling at the request of the boy's father, Manfred Kallweit, who had complained of health risks associated with inhaling secondhand smoke. Woman didn't appeal; custody case is pending. Lawyer for father was Charles M. Asbury, Sacramento. {WSJ, 10/18/90 and NYT 8/19/90}
10. 1991, Robert Strathmann v. Linda Foster, ( Ct. of Common Pleas of Erie County, PA). Judge Stephanie Domitrovich ordered that there will be no smoking in the natural father's home for at least 48 hours before children are to visit. The natural father shall provide a smokefree environment for all of the children while he is exercising his partial custody with them. Natural mother shall also provide a smokefree environment.
11. 1991, Mitchell v. Mitchell ( Ct. of App. of TN, Middle Section at Nashville, Appeal No. 01-A-01-9012-CV-00442, April 26). In this divorce case, the court refused to return custody of an asthmatic child to the mother although the mother had joined a smoking cessation program. The father had been awarded custody because the child suffered from asthma and, despite the pediatrician's advice, the mother and grandmother had not stopped smoking. The trial judge had found that the failure of the mother and grandmother to stop smoking was strong evidence of lack of proper concern for the welfare of the child. A belated cessation of smoking might evidence desire for the custody of the child rather than concern for the welfare of the child.
12. 1991, Nocera v. Nocera (Cir. Ct. of Kalamazoo, MI, File No. B 89-2922 DM, May 29). Judge John F. Foley ordered, pending further proceedings, that the Plaintiff, Sharon Nocera, shall not allow the minor children of the parties Nicolas Nocera and Lauren Nocera, to be exposed to cigarette smoke until further Order of this Court.
13. 1991, Brett Lee Bryant/Department of Social Services v. Wakely, et al., ( MI Ct. of App., No. 131708, June 13). The Michigan Court of Appeals upheld the decision of a Civil Court that placement with a grandmother who smoked would not be in a child's best interest. The child had serious respiratory problems and it was highly recommended that he live in close proximity to a hospital in Traverse City (where his grandparents were unable to relocate) and that he should live in a smokefree environment.
14. 1991, Lamacchia v. Lamacchia (O'Brien) (Probate Ct. of Middlesex County, MA Dec. 19). Temporary order that neither parent will smoke in front of their three-year-old son who suffers from lung ailments.
15. 1992, Sulva v. Isaacson (IL). Judge William Ward signed an order barring Isaacson from smoking when he visited his son. It was the first time in Illinois history that such an order has been signed. Alex, the son, suffers from bronchitis and it was alleged that his father's smoking might aggravate his condition. The order means that to have a smoke Isaacson will either have to abstain or leave his North Side apartment every other weekend from about 9:30 a.m. Saturday to 6:30 p.m. Sunday, as well as for about a month during the summer when he has Alex for visitation. One smoke in front of his son could lead to a contempt of court finding and a jail sentence of up to 6 months. { Chicago Tribune 1/16/92}
16. 1992, John Doe v. Jane Doe (SC). Court awarded custody of asthmatic child to father to prevent exposure to tobacco smoke in presence of mother. Mother is currently appealing order.
17. 1993, Masone v. Tanner ( Sacramento, CA, Oct 13). A county judge granted a nonsmoking father's request to remove an 8-year-old girl from the custody of her mother, his ex-wife. The child had only 43 percent of her breathing capacity because the mother continued to violate an earlier court order, obtained five years ago, that she not smoke around or near the child. The smoking continued until the child had an asthma attack and a doctor stated that she would end-up in an emergency room if her exposure to tobacco smoke continued. The child was placed in the custody of her grandmother. Attorney Sharon Huddle represented the father.
18. 1993, Montufar v. Navot (Sup. Ct., Fam. Div., Camden, NJ, Docket No. FM 04-0021-8789, Jul 23). Judge Orlando granted post-judgment relief to a nonsmoking father whose child, aged ten, was exposed to tobacco smoke by his mother and maternal relatives and suffered adverse effects. The order stated that the custodial mother shall provide the child a complete smokefree environment in the home in which he resides. There must be no smoking by other residents or by visitors. All smoking must be carried on outdoors. The custodial mother is also under obligation to take all reasonable steps in assuring that the child is not unduly exposed to ETS. The custodial mother must remove the child from any situation or location where he is exposed to passive smoke. As far as the grandparents are concerned (they live close to the mother) the order compels the mother to remove the child from the grandparents' presence if they are smoking. There is to be no smoking in any vehicle in which the child is a passenger. The father's attorney was Mr. Clein of Clein and Cettie (609)429-2700.These cases indicate the extent to which courts are now recognizing the hazard of ETS to children; and this recognition has been reflected in the court orders made for the protection of children likely to be exposed to ETS in the home environment.H11 - Child Custody Cases [Latest Revision 10/26/93 AM]
19. 1997, In re Swanson (1997 Minn. App. LEXIS 194). In awarding physical custody of the children to the father, Judge Larry G. Jorgenson found that the environment of the mother's home endangered the children's physical and emotional health, citing the continued smoking of the mother and her boyfriends.
20. 1998, Lamirande v. Lamirande (Sup. Ct. App., N.Y, Div. Slip Op. 05555). Appeals court affirms Family Court order directing mother to refrain from smoking or drinking alcohol in house or in car when in presence of children. Court decided that custody to the mother was in the best interests of the child thus requiring her refrain from smoking.
21. 1998, In re Hunt, (OH. App. Ct. App., C.A. No. 18741). Court of Appeals found that mother's failure to follow smoking program and best interests of child supported granting custody to the Children Services Board. Merely cutting back on smoking and recent attendance of smoking cessation program was not enough to comply with the Court's order.
22. 2002, Boaz v. Boaz, (Ct.App.Miss., 817 So.2d 627). The Appeals Court affirmed the Chancery Court's decision to grant custody to the mother where the child had restricitve air disease and where the father and father's mother were smokers. Although the mother had promiscuity and employment concerns, the Court reasoned that granting custody to the mother was still in the best interests of the child.
23. 2002, Johnita v. David, (N.Y. Sup. Ct. Slip Op. 22529). Judge Robert F. Julian that the trial court should take judicial notice that it was in the best intersts of the child that the mother and the father should be ordered not to smoke. The State has a role as parens patriae (parent of the country) and has broad authority to regulate and control the helpless.
24. 2002, In re Julie Ann (Ohio Ct. Com.Pl., No. 97-PR-755). Court ordered the mother and father to restrain under penalty of contempt from allowing any person including themselves from smoking in child's presence due to evidence that smoking causes health problems.
25. 2002, Barnes v. Barnes (2002 Tenn. App. LEXIS 759). Judge Robert A. Lanier modified the findings of the trial court by enjoining the father from smoking when the children were present.

Links:

Click here for a listing of selected judicial opinions for which the full text is available to read or download:

Click here for NEW Law Review Articles and Notes:

Government Report on Secondhand Smoke


Dangers of Secondhand Smoke Links

VA Woman Sentenced to 10 Days in Jail for Smoking Around Children [08/13/04]

 

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