Should Family Courts Restrict Exposure of Children to Second Hand Smoke?

There has been an ongoing discussion in the past week on the Michigan Family Law Section's Listserv about whether family courts have the authority to tell parents that they cannot smoke around their children; whether custody and parent time decisions can be made on the basis of exposure to ETS; and whether court orders that restrict the exposure of children to second hand smoke  -- either from the custodial parent or from a second wife or husband or a boyfriend/girlfriend are lawful.

There is no question that second hand smoke is harmful to children (and others) and that it is especially harmful to children with lung diseases such as asthma.

Lawyers and parents who seek to limit the exposure of children to second hand smoke will find authoritative support in the following:

Children and the Harm from Exposure to Second Hand Smoke:

The 1994 U.S. Surgeon General's report states that second-hand smoke harms children. Children who breathe second-hand smoke have more ear infections, more severe asthma attacks and more breathing problems than children who live in smoke-free homes. Footnote 1 Where tobacco use is allowed, children often have no way of protecting themselves from exposure to second-hand smoke.

The 1994 Surgeon General `s report also discusses the increased neonatal and infant mortality rates for children whose parents smoke. The pathological arterial change which causes atherosclerosis has also been observed in the umbilical arteries of infants born not only to mothers who smoke, but also to mothers who have been exposed to second-hand smoke. Footnote 2

Paternal as well as maternal smoking is associated with low infant birth weight. Parental smoking is also a significant risk factor for postnatal deaths, especially due to respiratory disease and sudden infant death syndrome (SIDS). Footnote 3

There is sound evidence that exposure to second-hand smoke in childhood is associated with an increased probability of developing asthma among certain at-risk children, and suggestive evidence that children who are not at risk and are exposed to second-hand smoke may have a higher-than-average risk of developing asthma. For asthmatic children, second-hand smoke has a causal role in asthmatic-related morbidity. Exposure to second-hand smoke represents a serious pediatric problem which has been estimated to double the risk of infection and death in children. Footnote 4

Children must be protected from the adverse health hazards of involuntary exposure to second-hand smoke.

Do Courts have the right to Regulate Exposure of Children to Second-hand Smoke?

One important question is whether Courts have the authority to regulate, by Court Order, the child’s exposure to second-hand smoke. Several State Courts have dealt with that issue. Although no Michigan Court has yet dealt with it, the following state court decisions in sister states may give attorneys some assistance in persuading a Michigan Court to regulate a child’s exposure to second-hand smoke. After summarizing these decisions, I have then included some reliable resources – primarily from the CDC and the American Lung Association – that will help attorneys and parents to argue for the proposition that the Court should protect children from second-hand smoke.

Harmful Effects of Second-hand Smoke / Custody and Parenting Time Decisions by State Courts

Disagreements between parents who are divorcing can, of course, cover a wide variety of subjects. One of the issues that has increasingly become a significant subject of disputes that have ended up before a judge in family court has been the exposure to ETS on the part of a child or children caught up in a recorded cases in at least 20 states (Sweda 1998).

In re Wilk v. Wilk, 781 S.W.2d 217 (Mo. App. 1989). The trial court in this case granted primary custody of the children to the mother, who had been advised by a doctor that the children, one of whom was asthmatic, should not be taken to the father’s home because he smoked. The Missouri Court of Appeals ruled that the trial court did not err in awarding custody of the minor children to the mother.

In re Aubuchon, 913 P.2d 221 (Kan. Ct. App. Mar. 22, 1996). In this case from Kansas, an ex-wife with custody sought permission to move with her children to another state; the ex-husband responded with a motion to obtain custody. The district court did make the change by awarding custody to the ex-husband after finding that the ex-wife’s smoking had harmed the children.

The ex-wife appealed, arguing that there had been no evidence to prove that her smoking had caused her children’s health problems. The court of appeals affirmed the district court’s change of custody, noting that there was evidence that her smoking had harmed the children: “That finding is supported by the testimony of three doctors that second-hand smoke aggravated the children’s health problems and placed them at risk for further health problems.”

Helm v. Helm (01-A-01-9209-CH00365), 1993 WL 21983 (Tenn. App. Feb. 3, 1993): In this case, the smoking issue was not sufficient to produce a change of custody. [But Note that this decision is prior to the recent research and reports from the CDC]. Here, the trial court awarded custody of a five-year-old child to the father. The mother appealed the divorce decree, arguing before the Court of Appeals of Tennessee that the father smoked around the child. The court said that “Other than exposure to violent movies and cigarette smoke, no evidence is cited that the father has neglected or mistreated the child” (p. 2). The trial court’s judgment was affirmed, with the mother being accorded visitation rights.

Baggett v. Sutherland, No. CA 88-224, 1989 WL 5399 (Ark. App. Jan. 25, 1989): A nonsmoking father attempted to obtain a change in custody on the basis of, among other things, the fact that the mother smoked in the presence of children who were allergic to smoke. Although the lower court had found that circumstances were not so changed as to warrant a change in custody, it did acknowledge that smoking was detrimental to the children. The mother was forbidden to smoke in the home or allow anyone else to smoke in the home; the judge “made it clear that he would exercise continuing jurisdiction over the parties to insure compliance with that order” (p. 3).

Johnita M.D. v David D.D., 191 Misc 2d 301, 740 NYS 2d 811 (NY Sup 03/20/2002): This case was interesting in that it was brought by a 13-year-old child seeking relief from Exposure to Second hand smoke (ETS). The Court held as follows, after considering a varied amount of research statistics and articles, and taking judicial notice of their content:

If the Court does take judicial notice of these facts and articles, it will hold it is in the best interest of the child that the Defendant and the Plaintiff should be ordered not to smoke or allow smoking of any type either at home or in the car at any time so that Nicholas may occupy both free of ETS exposure or risks.

Nicholas' exposure to ETS based on his description and his mother's acknowledged smoking habit is unacceptable in any parental residence or vehicle or other indoor situations. The Court will find any avoidable exposure of Nicholas to ETS is unacceptable because said exposure will place him both presently and in the future as an adult at increased risk to develop asthma, reduced lung function, coronary artery disease, lung cancer, and respiratory disorders.

[U] In re Proceeding for Custody Under Article 6 of the Family Court Act (N.Y.Fam. Ct. 12/23/2004) 2004 NY Slip Op 51784(U): The issues revolved around Mother’s chronic smoking (as well as that of BF) around children with “chest congestion,” her denial of parenting time, and the fact that she let the children watch R-rated movies. The NY Court summarized NY decisions dealing with a court’s authority to restrict second-hand smoke, saying:

“It has been held in this state that cigarette smoking as well as marijuana use, even on occasion, may be one of the elements considered by the Court when determining custody. In Roofeh v Roofeh, 138 Misc 2d 889 (Sup. Ct. Nass. Cty, 1988), the Court ordered the Mother not to smoke in the children’s presence and only to smoke in one particular room in the home. In Lizzio v Lizzio, 162 Misc 2d 701 (Fam. Ct, Fulton Cty, 1994), the Court forbade the offending parent from smoking tobacco anywhere in the household. This was modified sub nom Lizzio v Jackson, 226 AD2d 760 (3d Dept 1996), in which the Appellate Court held that smoking alone is not sufficient to change custody where the mother and her current husband both smoked in the children’s presence. The Court ordered them to smoke only on the back porch or outside of the house. Similar decisions were rendered in Breitung v Trask, 279 AD2d 677 (3d Dept 2001) and Holden v Tillotson, 277 AD2d 735 (3d Dept 2000). See also Bjorkland v Eastman, 279 AD2d 908 (3d Dept 2001).

In Johnita M.D. v David D.D., 191 Misc 2d 301 (NY Sup. Ct., 2002), (later proceeding sub nom DeMatteo v DeMatteo, 194 Misc 2d 640 (NY Sup Ct 2002)) the Court stated that the mother's addiction to smoking, which may result in her developing lung cancer, does not outweigh the Court's duty to protect a child. That Court prohibited both parties from smoking or allowing others to smoke at any time in their home or in their automobile, due to the presence of the children, even if the children were not physically present during the time of any smoking incidents. The Court further stated unequivocally that secondhand smoke causes lung cancer and could very well do so in the children.”

The NY Court affirmed the Trial Court’s award of custody to the father and in its order restricted the children’s exposure to second-hand smoke ordering:

ORDERED, that the Mother shall not smoke within her home or any automobile within which the children may be transported, for at least 24 hours prior to visitation (see DeMatteo v DeMatteo, supra), and the Mother shall not allow any other person, including, but not limited to her husband, and M., to smoke within the house or any automobile within which the children may be transported for at least 24 hours prior to visitation. THIS PROVISION OF THIS COURT ORDER IS INTENDED TO PROVIDE THAT THE CHILDREN MAY BE IN A SMOKE-FREE ENVIRONMENT AND NOT SUBJECT TO RESIDUAL OR SECOND-HAND SMOKE

Day v. Day, 2005 -Ohio- 4343 Case No. 04 COA 74 , (Ohio App. Dist.5 08/22/2005). In this Ohio case, similarly, the reviewing Court had no problem with affirming the trial court’s decision as to custody and parenting time that, in part, relied upon a finding that the children’s exposure to second-hand smoke posed a health problem. The Court stated:
In her Second Assignment of Error, appellant argues the trial court erred in placing restrictions on the children’s exposure to cigarette smoke. We disagree.

The challenged provision is as follows: "Lisa L. Day-Carter shall not smoke in the presence of the children, or otherwise expose them to second-hand smoke." Magistrate's Decision at 3. Appellant herein seems to mount a constitutional challenge to the trial court's order banning appellant from exposing the children to cigarette smoke, but her brief fails to develop a cognizable legal theory in support. We note R.C. 3109.04(F)(1)(e) requires a court to consider "[t]he mental and physical health of all persons involved in the situation" in making a best-interest determination. Furthermore, "[a]n avalanche of authoritative scientific studies * * * is clear and convincing evidence that secondhand smoke constitutes a real and substantial danger to children because it causes and aggravates serious diseases in children, which danger is both a 'relevant factor' and a 'physical health factor' that a family court is mandated to consider under the statute." In re Julie Anne, 121 Ohio Misc.2d 20, 43, 2002-Ohio-4489. See, also, Unger v. Unger (1994), 274 N.J. Super. 532, 538, 644 A.2d 691 (holding that " * * * the fact that a parent smokes cigarettes is a permissible parental habit to consider when determining what is in the best interests of the children because it may affect their health and safety.") The Ohio Supreme Court has additionally recognized that " * * * the Surgeon General, as well as other health agencies, has concluded that secondhand smoke impairs the respiratory health of thousands of young children." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 263, 2002-Ohio-4172.

Decisions on child custody and visitation lie within the trial court's sound discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178; Trickey v. Trickey (1952), 158 Ohio St. 9, 106 N.E.2d 772. Upon review of the record, we are unpersuaded the trial court abused its discretion in crafting a provision to protect the parties' children from secondhand smoke. We state this holding with the understanding that the trial court will reasonably interpret this provision to avoid frivolous contempt proceedings for inadvertent exposure to public secondhand smoke.

Rulings in other cases have been the product of compromise.
See, e.g., Northcutt v. Northcutt, a 1997 case, a nonsmoking father objected to ETS around his 2-year-old son, who has asthma and has had repeated respiratory infections, bronchitis, allergies, and earaches (Sweda 1998). As part of a joint custody agreement, a Warren County, Tennessee, judge ordered the mother to keep her son away from ETS. Each parent was to have custody for six months per year.

SCIENTIFIC RESEARCH TO SUPPORT POSITION THAT CHILDREN SHOULD NOT BE EXPOSED TO SECOND-HAND SMOKE:

I found valuable information about the harmful effects of smoking, and of breathing second-hand smoke in the following publication: I. U.S. Department of Health and Human Services. Reducing Tobacco Use: A Report of the Surgeon General. http://www.cdc.gov/tobacco/sgr/sgr_2000/FullReport.pdf   
Atlanta, Georgia: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2000. II. From the CDC: Secondhand Smoke and Children  http://www.cdc.gov/communication/tips/shsmoke.htm

What's the Problem? Children who breathe secondhand smoke are more likely to suffer from pneumonia, bronchitis, and other lung diseases, as well as more asthma attacks and ear infections.

Who's at Risk? Twenty-seven percent of children aged 6 years and under live in a household where someone smokes inside the house at least 4 days per week.

Secondhand smoke is linked to many illnesses, including between 700,000 and 1.6 million physician office visits for middle ear infections in children each year. It causes and worsens asthma as well as acute respiratory infections such as bronchitis and pneumonia and contributes to 500,000 physician visits by children.

In addition, smoking during pregnancy can cause miscarriage, low birth weight, premature delivery, respiratory problems in newborns and Sudden Infant Death Syndrome. Many people are unaware that smoke from cigarettes, pipes, and cigars is toxic to the developing fetus. A child who has had this type of exposure may experience long-term consequences.

III. From the American Lung Association: Secondhand Smoke Fact Sheet [November 2004]  http://www.lungusa.org/site/pp.asp?c=dvLUK9O0E&b=35422

Secondhand smoke is especially harmful to young children. Secondhand smoke is responsible for between 150,000 and 300,000 lower respiratory tract infections in infants and children under 18 months of age, resulting in between 7,500 and 15,000 hospitalizations each year, and causes 1,900 to 2,700 sudden infant death syndrome (SIDS) deaths in the United States annually, citing California Environmental Protection Agency. Health Effects of Exposure to Environmental Tobacco Smoke. September 1997.

Secondhand smoke exposure may cause buildup of fluid in the middle ear, resulting in 700,000 to 1.6 million physician office visits per year. Secondhand smoke can also aggravate symptoms in 200,000 to 1,000,000 children with asthma. Id.

In the United States, 21 million, or 35 percent of, children live in homes where residents or visitors smoke in the home on a regular basis, citing Schuster,MA, Franke T, Pham CB. Smoking Patterns of Household Members and Visitors in Homes with Children in United States. Archives of Pediatric Adolescent Medicine. Vol. 156, 2002: 1094-1100.

Approximately 50-75 percent of children in the United States have detectable levels of cotinine, the breakdown product of nicotine in the blood. Citing U.S.Environmental Protection Agency. America's Children and the Environment: Measures of Contaminants, Body Burdens, and Illnesses. Second Edition. February 2003

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Footnotes.

[1] U.S. Department of Health and Human Services. Preventing tobacco use among young people: A report of the Surgeon General. U.S. Department of Health and Human Services, Public Health Service, Centres for Disease Control and Prevention, International Centre for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 1994.

[2] U.S. Department of Health and Human Services, 1994. Ibid.

[3] Klonoff-Cohen HS. The effect of passive smoke and tobacco exposure through breast milk on sudden infant death syndrome. Journal of the American Medical Association , March 8, 1995:273;795-798.

[4] Gridding SS, et al. Active and Passive Tobacco Exposure: A serious pediatric health problem: A statement from the committee on atherosclerosis and hypertension in children, council on cardiovascular disease in the young, American Heart Association. Circulation , November, 1994:90(5);2581-2590.

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Comments

[Jodi]

We are in Isabella County in Michigan and our lawyer was just successful in getting the court here to issue an order precluding cigarette smoke or exposure to cigarette smoke during parenting time. The other party was intentionally exposing the minor children to second hand smoke, although she was not smoking herself. One of the minor children has a known medical condition - asthma, but she was still exposing them to smoke.

I just wanted to say thank you for your article regarding this issue - it proved helpful in our case.

I don't know if this order will be successful in preventing this harmful activity to the kids though because such an order is difficult to enforce.