Introduction
1996 was an especially bad yr for the tobacco manufacture. 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 besides appears to be changing. No longer seen equally primarily an effect of personal choice, smoking is at present oftentimes viewed as a widespread social problem whose costs and consequences are shared by all.

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

The Country of the Police force in New Bailiwick of jersey: Unger 5. Unger

Custody decisions in New Jersey are governed by Northward.J.Due south.A. ix:ii-4. Under that statute, courts are free to make any custody arrangement which is in the best interests of the kid. Due north.J.S.A. 9:two-4(c). "The child'south all-time interests decide custody." Matter of Baby Thou, 109 N.J. 396, 453 (1988). In determining the best interests of the child, courts are to consider several factors including "the condom of the child" and the "fettle of the parents." N.J.Due south.A. 9:2-iv (c). "A parent shall not exist deemed unfit unless the parents' acquit has a substantial adverse effect on the child." Id.

In New Bailiwick of jersey, as in most jurisdictions, the law on the upshot of parental smoking and custody is far from settled. Currently, in that location is simply 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 movement to modify a consent order as to custody of two children. By virtue of a prior consent organization, 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 domicile and automobiles. Next, the mother, the custodial parent in this case, would be restricted to merely 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 farther 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 information technology decreases when he resides . . . in a fume free environment." Id. at 535. The begetter made application to reopen the custody outcome maintaining that only he could provide the children with a totally smoke gratis surroundings and spare them from farther harm.

Later considering testimony which included various medical experts and review of the children'southward medical records, the court establish that the restrictions in the consent gild left the child vulnerable to harm from the mother's cigarette smoke. The court stated that under the all-time interests of the child standard, the effects of smoking on children should be considered "as a health and condom gene." Unger made extensive findings as to the harmful furnishings of ETS on children. The court cited to the December 1992 EPA report. (See fn. 1, supra).

The court as well relied on Shrimp v. New Jersey Bell Phone Co., 145 North.J. Super. 516, 530 (Ch. Div. 1976), which held that "[t]he bear witness is articulate and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a wellness hazard not just to the smoker but to all those around her who must rely upon the same air supply." The courtroom also cited to N.J.Southward.A. 26:3D-38, North.J.South.A. 26:3D-46, and N.J.S.A. 26:3E-seven, stating that "the Legislature has found and alleged tobacco smoke is a substantial health hazard to a smaller segment of the nonsmoking public."

Although it is the merely reported example on this result in New Jersey, Unger is clearly not the last word on smoking and child custody. Indeed, Unger reserved for a terminal hearing the issue of custody and therefore it is unclear as to the weight which the trial courtroom ultimately afforded the result every bit confronting other custody factors. As many of the complexities of the smoking issue were non 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 tendency in the law is headed.

Showing Impairment to the Child

The instance constabulary throughout the country is articulate that for a kid's exposure to ETS to go a custody outcome, it must be shown that: ane) the kid suffers from some medical problem; and 2) there must exist testify that this problem was caused or exacerbated by ETS. To engagement no cases have restricted a parent's smoking or based a custody decision on a parent's smoking where these two factors were non shown. Thus, notwithstanding the present attitudes against cigarette smoking, hypothetical harm to the child alone has not been sufficient to brand ETS an issue in custody cases. Withal, equally seen in Unger, the medical problem effecting the child need non be astringent. In Unger the only symptom of an adverse affect from ETS was simply a persistent coughing. Information technology is more common for asthma, allergies, and respiratory infections to exist established equally the adverse health effects from exposure to ETS necessary to make smoking an consequence 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 plant that "[t]he reported medical testify seems clear on the serious deleterious effects of smoking on an asthmatic kid. For example, the presence of one or more smokers in an asthmatic kid'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); run across also Mitchell 5. Mitchell, 1991 WL 63674 (Tenn. App. 1991).

Medical testimony that a child is allergic to cigarette fume volition acquit substantial weight towards proving an adverse health effect caused past ETS. In Pizzitola 5. Pizzitola, 748 S.West.2nd 568 (Tex. Ct. App. 1988), custody was granted to the father where the female parent smoked and the daughter was found to be extremely allergic to cigarette smoke. See as well 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.

In one case the child'south medical problem has been demonstrated, the focus and then turns to causation. In nigh cases expert testimony is necessary to link the child's medical trouble to the parent's smoking. Unless this testimony clearly satisfies the court that the kid's exposure to ETS is the crusade of the harm, the consequence of smoking may become nullified. For example, in In Re Marriage of Diddens, 625 N.E.2d 1033 (Sick. 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.

Still these facts, the courtroom refused to modify the custody system stating that "it was not established that the environs in the [female parent's] home caused the health issues." 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 nether a "modify 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 alter custody considering 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); encounter also Lizzio, at 331.

Notwithstanding the change in circumstance line of cases, there would announced to be stiff arguments to consider ETS in some cases regardless of the previous smoking history of the parties. For case, where at that place is a clear and present danger to the kid, the country's responsibility nether the doctrine of parens patriae may require action withal a lack of inverse circumstances. Especially where clear harm to the kid can be demonstrated and where the nexus between that harm and ETS exists, courts may come up to the determination that the consequence of whether a parent smoked during the marriage is non a footing 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 not-smoking parent. The far more than common remedy is to craft restrictions on the right of the smoking parent to smoke almost the kid.

The extent of restrictions on a parent's smoking varies greatly among cases. Some courts crave an elimination of all smoking in the home and automobile regardless of whether the children are present. Meet Baggett, at *three. Others permit smoking in the habitation, just restrict when that smoking may occur previous to the children'south arrival. See Unger, at 541. Still other courts merely order a proscription on smoking in the "presence" of the children. See Michael Scott 1000. 5. Victoria 50.Yard., 453 South.E.2nd 661 (W. Va. 1994); Lizzio, at 331.

Regardless of the nature of the brake, these cases oftentimes issue in bug with monitoring and enforcement. Challenges that a party may have violated a smoking restriction often require a fourth dimension consuming hearing to determine disputed facts and allegations. When fact witnesses are non available, adept analysis may exist necessary. In these cases, medical reports regarding the health of the kid, the smoke content of the child's article of clothing, or the air quality in the custodial parent's home may be of import in demonstrating a violation of the smoking restrictions.

There are cases where courts take 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'southward smoking "had harmed the children." Id. at 223.

Ane court found a custodial parent's smoking to exist 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 modify of custody only where there is articulate bear witness that the smoking parent is ignoring either a courtroom order or a dr.'southward advice to refrain from smoking in the presence of the kid. For case, courts concluded that smoking in the presence of a asthmatic child in contradiction of a physician'south advise "was potent evidence of a lack of proper business concern for the welfare of the child." Mitchell v. Mitchell, 1991 WL 63674 at *iii (Tenn. App. 1991).

Weighing of Smoking Against Other Issues

In well-nigh instances smoking becomes a critical result 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, accept given limited weight to the issue holding that smoking "should in no way be construed as reflecting negatively on petitioner'due south ability to parent the children." Lizzio at 332. In Lizzio, the trial court's custody conclusion which relied on the effect of smoking was reversed as the appellate courtroom held that "this cistron lonely did non warrant a modify in physical custody." Id. at 331. Similarly, the Tennessee Courtroom of Appeals recently stated that although "[i]deally, no kid should be exposed to cigarette smoke in any caste. Information technology must exist given some consideration in the selection of a custodian for the kid. Even so, it is one of many factors to be considered, and is not necessarily the ascendant or decisive consideration." Captain v. Helm, 1993 WL 21983 at *i (Tenn. App. 1993).

Most recently the issue of smoking was weighed confronting the issue of domestic violence. In Heck v. Reed, 529 N.W.2d 155 (Northward.D. 1995), the court found that the mother smoking in the presence of an asthmatic child did not rebut the presumption against application custody of the children to the defendant-begetter. Id. at 163. Although the mother's smoking was restricted, she retained custody despite the evidence that she was harming the child through ETS. Equally stated past the court, "we exercise not believe that the legislature intended that the presumption against application 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 Bug

Unger addressed the ramble issue of whether a parent's right to smoke could exist restricted. The court institute no constitutional correct to smoke thereby making such restrictions permissible. Farther, 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 involvement could be restricted. Id. at 540; Citing In re J.Southward. & C., 129 N.J. Super. 486, 489 (Ch. Div. 1974), aff'd, 142 Due north.J. Super. 499 (App. Div. 1976).

Nevertheless Unger, some have argued for a constitutional challenge on smoking restrictions based on the right of parents to exist costless from governmental interference in raising their children. See Victoria L. Wendling, Smoking and Parenting: Tin can They Be Adjudged Mutually Sectional Activities?, 42 Case West. Res. Fifty. Rev. 1025 (1992). The argument is that in cases where the harm to the kid 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 conclusion-making and control of their children is axiomatic in American law and culture.

The United states of america Supreme Court has recognized the fundamental right of parents to enhance their children. See generally, Stanley v. Illinois, 405 U.S. 645 (1972). The courts have as well stressed that parents have the correct to raise their children according to their own moral choices. In In Re Matrimony of Wellman, 164 Cal. Rptr. 148, 152 (Cal. Ct. App. 1980), the California Courtroom of Appeals held that custody decisions should not be based upon disapproval of a parent'due south morals or other personal characteristics which do not impairment or have a meaning begetting on the child. Similarly, the Pennsylvania Superior Court constitute a parent fit despite immoral behavior where the child's evolution was normal. Michael T.L. 5. Marilyn L.J., 525 A.second 414, 420 (Pa. Super. Ct. 1987).

When viewed as only a permissible immoral beliefs, the issue of cigarette smoking arguably should accept no consequence on deciding child custody. For example, in custody disputes involving one parent who drinks or uses illegal drugs, it must exist shown both that the parent uses the substances and that this use has a detrimental upshot on the child. See Wendling at 1061. Similarly, courts take refused to change custody based on extramarital affairs, sexual promiscuity, and exposure of the child to obscene materials. Meet Feldman v. Feldman, 358 North.Y.Southward.2nd 507, 509 (App. Div. 1974); In re Custody of Temos, 450 A.second 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 kid, the constitutional right to raise i's children could overcome any enquiry into the issue of smoking.

Smoking By 3rd Parties

Cigarette smoking tin become an issue in a custody example even where the smoker is not the parent of the child. Parties have raised ETS as an outcome when stepparents, paramours and other persons who fume 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 responsibleness to forbid that harm.

Several decisions have cited smoking by other family members in making a decision on custody. In Gilbert the court inverse custody even so the preference of the kid "in view of the serious and continuos take a chance to his physical wellness while his mother and stepfather continue to smoke." See Gilbert at 5. The W Virginia Supreme Court found that as both the custodial parent and other "family members" smoke, the courtroom could restrict the entire family's smoking around the child. Run into Michael Scott M. at 666.

At that place 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 volition have less tolerance to exposing children to ETS caused by these individuals. This will place an added brunt on custodial parents to ensure that persons who they bring into the household practice 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. All the same, the growing recognition of the harm caused by ETS and the increasing unpopularity of cigarette smoking in general suggests that smoking may soon get a greater factor in custody matters. Practitioners treatment child custody cases in which smoking is an issue should be prepared to nowadays medical testify as to the adverse furnishings of ETS and the causal link between cigarette smoking and the harm suffered by the child. **

John P. Paone, Jr. is a Certified Matrimonial Constabulary Chaser and a Fellow of the American University of Matrimonial Lawyers. He is a quondam chair of the New Jersey Country Bar Association's Family Law Section. He practices law in Woodbridge, New Jersey, with the Constabulary

Offices of Paone, Zaleski & Brown. The author wishes to give thanks Marion "Sid" Donica for his help in researching and preparing this article.