Feature Article

Family Court Judges Acknowlege Dangers of Secondhand Smoke to Children

A recent case out of Washington state highlights the trend of family court judges who include "no smoking" orders for parents in decisions involving child custody issues.  With this most recent case, Washington joins at least 16 other states, including Ohio, where judges have issued decisions relating to the harmful effects of smoking on children in the home.  The majority of the cases involve children who suffer from upper respiratory problems, such as asthma and bronchitis, however the issue has also been raised in cases involving children without apparent health problems, and judges have issued protective orders for both types of cases.

The Washington case involved a 13-year old boy and his 10-year old sister.  The boy, who suffered from asthma, recurrent ear infections and sinus infections, would return from visitations with his mother smelling of cigarette smoke.  The judge who issued the order banning all smoking in the home when either of the children is present, took judicial notice of the harmful effects of smoking.  This procedural step alleviated the need to hear expert testimony by Dr. Chris Covert-Bowlds, who had prepared to testify to the fact that secondhand cigarette smoke poses many dangers, particularly to the health of children exposed to it on a regular basis.  The judge stated from the bench that "everyone knows that secondhand smoke is harmful."  Since the judge's order, the boy's health problems have resolved themselves and he has excelled on his school's track team.

Although research on child custody cases involving parental smoking indicates that such decisions date back to at least 1988, the issue is being raised with increasing frequency by family law practitioners representing non-smoking clients who seek to protect their children's health from their smoking ex-wifes or ex-husbands.  Many smokers defend their habit as a "constitutional right to smoke" or believe that court orders prohibiting them from doing so in the home around their children is an "invasion of privacy."  Both of these arguments are false and cannot be substantiated under the law.

The United States Supreme Court has never ruled that there is a constitutional right to smoke, and based on legal precedent involving other protected rights it is highly unlikely that the Court would ever rule that there is such a right. Further, under the parens patriae doctrine (the state as parent) a family court is empowered to act to protect the health of a child.  Courts regularly do so, with little controversy, when there is evidence of drug use, inappropriate sexual behavior by parents, garbage in the home, or exposure to lead paint and asbestos.

Attorney John Banzaf, a law professor and Executive Director and Chief Counsel of Action on Smoking and Health (ASH), assisted the non-smoking parent in the Washington case.  He says, "More and more judges are ruling that smoking around a child is dangerous, and that it can be grounds for loss of custody - indeed, several parents have lost custody because they smoked around their children.  In some cases, authorities have treated the matter as child abuse, child neglect, or reckless endangerment, and have acted on the complaint of a third party such as a relative other than the spouse, a physician, etc.  No court has ever ruled to the contrary."

For more information and case citations on "Smoking and Child Custody," feel free to contact us.  There will also be a panel discussion on this topic with a Franklin County Domestic Court magistrate and an allergist at the 2005 Toward a Model Ohio conference presented by the Center on October 20, 2005 (please refer to our homepage for more details).