The Developing Law on Cigarette Smoking and Child Custody – By John P. Paone Jr.


Introduction
1996 was an especially bad year for the tobacco industry. Internal industry documents have now disclosed that cigarette companies knew decades ago that cigarettes were addictive and posed substantial health hazards. The public attitude surrounding smoking issues also appears to be changing. No longer seen as primarily an issue of personal choice, smoking is now often viewed as a widespread social problem whose costs and consequences are shared by all.

The Clinton Administration was actively engaging the tobacco industry and for the first time in history gave the Food and Drug Administration (“FDA”) the power to regulate cigarette sales. The FDA has now promulgated regulations which focus on preventing children from smoking. 61 Fed. Reg. 44,396 (1996) (to be codified at 21 C.F.R. pts. 801, 803, 804, 807, 820 & 897).

The renewed concern regarding the effects of cigarette smoking on children makes it appropriate to examine what importance the issue has in child custody cases. Since at least 1986, environmental tobacco smoke (“ETS”) has been recognized to cause serious adverse health effects to children including an increase in lower respiratory tract infections, upper respiratory irritation, and an increase in the incidence and severity of asthma.1 This article will examine the issue of smoking and the role it plays in determining the “best interests of the child” in custody cases.

The State of the Law in New Jersey: Unger v. Unger

Custody decisions in New Jersey are governed by N.J.S.A. 9:2-4. Under that statute, courts are free to make any custody arrangement which is in the best interests of the child. N.J.S.A. 9:2-4(c). “The child’s best interests determine custody.” Matter of Baby M, 109 N.J. 396, 453 (1988). In determining the best interests of the child, courts are to consider several factors including “the safety of the child” and the “fitness of the parents.” N.J.S.A. 9:2-4 (c). “A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.” Id.

In New Jersey, as in most jurisdictions, the law on the issue of parental smoking and custody is far from settled. Currently, there is only one reported New Jersey case which has considered the effects of ETS on children in a custody context. See Unger v. Unger, 274 N.J. Super. 532 (Ch. Div. 1994). In Unger, the court was presented with a motion to modify a consent order as to custody of two children. By virtue of a prior consent arrangement, the parties had placed several restrictions on parental smoking. First, they agreed that neither party would smoke in the presence of the children in the home and automobiles. Next, the mother, the custodial parent in this case, would be restricted to only smoking in her bedroom when the children were present in the home. The mother was permitted to smoke in the living quarters of the house only when the children were not present, and provided further that she purchase an air purifier.

Notwithstanding the restrictions on smoking, the father in Unger argued that harm was inflicted upon one of the children due to ETS. Although not arguing non-compliance with the smoking restrictions, it was alleged that one child suffered from “a deep chesty cough . . . and that it decreases when he resides . . . in a smoke free environment.” Id. at 535. The father made application to reopen the custody issue maintaining that only he could provide the children with a totally smoke free environment and spare them from further harm.

After considering testimony which included various medical experts and review of the children’s medical records, the court found that the restrictions in the consent order left the child vulnerable to harm from the mother’s cigarette smoke. The court stated that under the best interests of the child standard, the effects of smoking on children should be considered “as a health and safety factor.” Unger made extensive findings as to the harmful effects of ETS on children. The court cited to the December 1992 EPA report. (See fn. 1, supra).

The court also relied on Shrimp v. New Jersey Bell Telephone Co., 145 N.J. Super. 516, 530 (Ch. Div. 1976), which held that “[t]he evidence is clear and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around her who must rely upon the same air supply.” The court also cited to N.J.S.A. 26:3D-38, N.J.S.A. 26:3D-46, and N.J.S.A. 26:3E-7, stating that “the Legislature has found and declared tobacco smoke is a substantial health hazard to a smaller segment of the nonsmoking public.”

Although it is the only reported case on this issue in New Jersey, Unger is clearly not the last word on smoking and child custody. Indeed, Unger reserved for a final hearing the issue of custody and therefore it is unclear as to the weight which the trial court ultimately afforded the issue as against other custody factors. As many of the complexities of the smoking issue were not reached by the trial court in Unger, it is necessary to examine the developing case law from other jurisdictions to understand some of the important issues in smoking cases and where the trend in the law is headed.

Showing Harm to the Child

The case law throughout the country is clear that for a child’s exposure to ETS to become a custody issue, it must be shown that: 1) the child suffers from some medical problem; and 2) there must be evidence that this problem was caused or exacerbated by ETS. To date no cases have restricted a parent’s smoking or based a custody decision on a parent’s smoking where these two factors were not shown. Thus, notwithstanding the present attitudes against cigarette smoking, hypothetical harm to the child alone has not been sufficient to make ETS an issue in custody cases. However, as seen in Unger, the medical problem effecting the child need not be severe. In Unger the only symptom of an adverse impact from ETS was simply a persistent cough. It is more common for asthma, allergies, and respiratory infections to be established as the adverse health effects from exposure to ETS necessary to make smoking an issue in custody matters.

Asthma is a symptom which courts have found is exacerbated and in some cases caused by ETS. Recently, a Connecticut trial court found that “[t]he reported medical evidence seems clear on the serious deleterious effects of smoking on an asthmatic child. For example, the presence of one or more smokers in an asthmatic child’s household resulted in 63% more emergency room visits than visits of asthmatic children from nonsmoking households.” Gilbert v. Gilbert, 1996 WL 494080, at *5 (Conn. Super. Ct. 1996); see also Mitchell v. Mitchell, 1991 WL 63674 (Tenn. App. 1991).

Medical testimony that a child is allergic to cigarette smoke will carry substantial weight towards proving an adverse health effect caused by ETS. In Pizzitola v. Pizzitola, 748 S.W.2d 568 (Tex. Ct. App. 1988), custody was granted to the father where the mother smoked and the daughter was found to be extremely allergic to cigarette smoke. See also Baggett v. Sutherland, 1989 WL 5399 (Ark. Ct. App. 1989). In Lizzio v. Jackson, 640 N.Y.S.2d 330 (Sup. Ct. 1996), the court upheld restrictions on smoking where the child was allergic to cigarette smoke and suffered from asthma.

Once the child’s medical problem has been demonstrated, the focus then turns to causation. In most cases expert testimony is necessary to link the child’s medical problem to the parent’s smoking. Unless this testimony clearly satisfies the court that the child’s exposure to ETS is the cause of the harm, the issue of smoking may become nullified. For example, in In Re Marriage of Diddens, 625 N.E.2d 1033 (Ill. App. Ct. 1993), the children suffered from various respiratory infections, and they were exposed to ETS in the mother’s home where they resided. The father sought to modify a custody arrangement based on the adverse health effects of ETS.

Notwithstanding these facts, the court refused to modify the custody arrangement stating that “it was not established that the environment in the [mother’s] home caused the health problems.” Id. at 1037.

Change in Circumstances: Smoking Before and After the Divorce

Some jurisdictions have examined whether smoking was permitted in the presence of children during the marriage. In these cases, the courts have tended to treat the issue under a “change in circumstances” analysis akin to the standard family practitioners are familiar with in modification of support cases. Under this standard, courts have dismissed the issue of ETS where the smoking parent smoked before the divorce. Thus, citing the lack of changed circumstances, courts have refused to modify custody because nothing in the record indicated that the custodial parent did not smoke prior to the divorce. Cooley v. Cooley, 643 So.2d 408 (La. Ct. App. 1994); see also Lizzio, at 331.

Notwithstanding the change in circumstance line of cases, there would appear to be strong arguments to consider ETS in some cases regardless of the previous smoking history of the parties. For example, where there is a clear and present danger to the child, the state’s responsibility under the doctrine of parens patriae may require action notwithstanding a lack of changed circumstances. Especially where clear harm to the child can be demonstrated and where the nexus between that harm and ETS exists, courts may come to the conclusion that the issue of whether a parent smoked during the marriage is not a basis to avoid taking action to protect the child.

Remedies: A Change in Custody vs. Restrictions on Smoking

When confronted with the situation of a child suffering harm from exposure to ETS, the courts have employed one of two remedies. The obvious and most drastic is to award custody to the non-smoking parent. The far more common remedy is to craft restrictions on the right of the smoking parent to smoke near the child.

The extent of restrictions on a parent’s smoking varies greatly among cases. Some courts require an elimination of all smoking in the home and automobile regardless of whether the children are present. See Baggett, at *3. Others permit smoking in the home, but restrict when that smoking may occur previous to the children’s arrival. See Unger, at 541. Still other courts merely order a proscription on smoking in the “presence” of the children. See Michael Scott M. v. Victoria L.M., 453 S.E.2d 661 (W. Va. 1994); Lizzio, at 331.

Regardless of the nature of the restriction, these cases often result in problems with monitoring and enforcement. Challenges that a party may have violated a smoking restriction often require a time consuming hearing to determine disputed facts and allegations. When fact witnesses are not available, expert analysis may be necessary. In these cases, medical reports regarding the health of the child, the smoke content of the child’s clothing, or the air quality in the custodial parent’s home may be important in demonstrating a violation of the smoking restrictions.

There are cases where courts have modified or reversed a custody arrangement based on cigarette smoking. In Aubuchon v. Aubuchon, 913 P.2d 221 (Kan. Ct App. 1996), a change of custody was deemed the appropriate solution after the trial court found that the custodial parent’s smoking “had harmed the children.” Id. at 223.

One court found a custodial parent’s smoking to be sufficient reason to modify a joint custody arrangement by curtailing the time the child may spend with the smoking parent. Badeaux v. Badeaux, 541 So.2d 301 (La. Ct. App. 1989). In most cases, however, smoking results in a change of custody only where there is clear evidence that the smoking parent is ignoring either a court order or a doctor’s advice to refrain from smoking in the presence of the child. For example, courts concluded that smoking in the presence of a asthmatic child in contradiction of a doctor’s advise “was strong evidence of a lack of proper concern for the welfare of the child.” Mitchell v. Mitchell, 1991 WL 63674 at *3 (Tenn. App. 1991).

Weighing of Smoking Against Other Issues

In most instances smoking becomes a critical issue when the parenting skills of the parties are equal and the court is searching for factors which may tip the scales in deciding custody. See Gilbert at 3. Some courts, however, have given limited weight to the issue holding that smoking “should in no way be construed as reflecting negatively on petitioner’s ability to parent the children.” Lizzio at 332. In Lizzio, the trial court’s custody decision which relied on the issue of smoking was reversed as the appellate court held that “this factor alone did not warrant a change in physical custody.” Id. at 331. Similarly, the Tennessee Court of Appeals recently stated that although “[i]deally, no child should be exposed to cigarette smoke in any degree. It must be given some consideration in the selection of a custodian for the child. However, it is one of many factors to be considered, and is not necessarily the dominant or decisive consideration.” Helm v. Helm, 1993 WL 21983 at *1 (Tenn. App. 1993).

Most recently the issue of smoking was weighed against the issue of domestic violence. In Heck v. Reed, 529 N.W.2d 155 (N.D. 1995), the court found that the mother smoking in the presence of an asthmatic child did not rebut the presumption against awarding custody of the children to the defendant-father. Id. at 163. Although the mother’s smoking was restricted, she retained custody despite the evidence that she was harming the child through ETS. As stated by the court, “we do not believe that the legislature intended that the presumption against awarding custody of children to a perpetrator of domestic violence be trumped by the fact that the victim-parent smokes.” Id. at 165. On the contrary, exposure to ETS has been held to override the preference of the child in custody cases. See Gilbert at 5.

Constitutional Issues

Unger addressed the constitutional issue of whether a parent’s right to smoke could be restricted. The court found no constitutional right to smoke thereby making such restrictions permissible. Further, the court found that “upon a showing that the parent’s activity may tend to impair the physical health of the child,” a parent’s constitutional interest could be restricted. Id. at 540; Citing In re J.S. & C., 129 N.J. Super. 486, 489 (Ch. Div. 1974), aff’d, 142 N.J. Super. 499 (App. Div. 1976).

Notwithstanding Unger, some have argued for a constitutional challenge on smoking restrictions based on the right of parents to be free from governmental interference in raising their children. See Victoria L. Wendling, Smoking and Parenting: Can They Be Adjudged Mutually Exclusive Activities?, 42 Case W. Res. L. Rev. 1025 (1992). The argument is that in cases where the harm to the child from ETS is slight, or the nexus between the harm and smoking is attenuated, the fundamental right of parents to raise their children may not be superseded. Traditional dominance of parental decision-making and control of their children is axiomatic in American law and culture.

The United States Supreme Court has recognized the fundamental right of parents to raise their children. See generally, Stanley v. Illinois, 405 U.S. 645 (1972). The courts have also stressed that parents have the right to raise their children according to their own moral choices. In In Re Marriage of Wellman, 164 Cal. Rptr. 148, 152 (Cal. Ct. App. 1980), the California Court of Appeals held that custody decisions should not be based upon disapproval of a parent’s morals or other personal characteristics which do not harm or have a significant bearing on the child. Similarly, the Pennsylvania Superior Court found a parent fit despite immoral behavior where the child’s development was normal. Michael T.L. v. Marilyn L.J., 525 A.2d 414, 420 (Pa. Super. Ct. 1987).

When viewed as only a permissible immoral behavior, the issue of cigarette smoking arguably should have no effect on deciding child custody. For instance, in custody disputes involving one parent who drinks or uses illegal drugs, it must be shown both that the parent uses the substances and that this use has a detrimental effect on the child. See Wendling at 1061. Similarly, courts have refused to change custody based on extramarital affairs, sexual promiscuity, and exposure of the child to obscene materials. See Feldman v. Feldman, 358 N.Y.S.2d 507, 509 (App. Div. 1974); In re Custody of Temos, 450 A.2d 111, 122 (Pa. Super. Ct. 1982); M.D.R. v. P.K.R., 716 S.W.2d 866, 869 (Mo. Ct. App. 1986); Manley v. Manley, 389 So.2d 454, 456-57 (La. Ct. App. 1980). Thus without a showing of clear harm to the child, the constitutional right to raise one’s children could overcome any inquiry into the issue of smoking.

Smoking By Third Parties

Cigarette smoking can become an issue in a custody case even where the smoker is not the parent of the child. Parties have raised ETS as an issue when stepparents, paramours and other persons who smoke come into contact with the child on a regular basis. In these cases, the focus is generally on the harm to the child and the custodial parent’s responsibility to prevent that harm.

Several decisions have cited smoking by other family members in making a decision on custody. In Gilbert the court changed custody notwithstanding the preference of the child “in view of the serious and continuos hazard to his physical health while his mother and stepfather continue to smoke.” See Gilbert at 5. The West Virginia Supreme Court found that as both the custodial parent and other “family members” smoke, the court could restrict the entire family’s smoking around the child. See Michael Scott M. at 666.

There is no reported case in which the issue of custody was decided solely due to ETS caused by a party other than the natural parent. However, as third parties do not have the discretion afforded parents in raising their children, it would seem that courts will have less tolerance to exposing children to ETS caused by these individuals. This will place an added burden on custodial parents to ensure that persons who they bring into the household do not smoke in the presence of the child.

Conclusion

New Jersey has yet to see an abundance of custody cases in which cigarette smoking has become an issue. However, the growing recognition of the harm caused by ETS and the increasing unpopularity of cigarette smoking in general suggests that smoking may soon become a greater factor in custody matters. Practitioners handling child custody cases in which smoking is an issue should be prepared to present medical evidence as to the adverse effects of ETS and the causal link between cigarette smoking and the harm suffered by the child. **

John P. Paone, Jr. is a Certified Matrimonial Law Attorney and a Fellow of the American Academy of Matrimonial Lawyers. He is a former chair of the New Jersey State Bar Association’s Family Law Section. He practices law in Woodbridge, New Jersey, with the Law

Offices of Paone, Zaleski & Brown. The author wishes to thank Marion “Sid” Donica for his assistance in researching and preparing this article.

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