Custody judge bans smoking near child
A judge in Lake County has barred the estranged parents of an 8-year-old girl from smoking in her presence or allowing anyone else to puff around her.
Legal experts say the custody case ruling is a first because the issue was brought up by the judge. Typically, a tobacco-free parent raises concerns about smoking, either looking for a bargaining chip or because of a child's health problem.
But it was Judge William Chinnock who asked about smoking during a hearing on visitation. The mother, who has custody of the girl identified only as Julie Anne, admitted that adults are allowed to smoke in her home.
Chinnock pointed out the dangers of children's exposure to secondhand smoke to the mother and her live-in boyfriend. The couple told the judge their relationship would be severely strained if smoking was banned in their home.
But Chinnock said in a written ruling that the court's first responsibility is to the child, and the scientific evidence against secondhand smoke cannot be ignored.
"A family court that fails to issue court orders restraining persons from smoking in the presence of children . . . is failing the children whom the law has entrusted to its care," Chinnock said in the ruling.
The ruling was posted on the Ohio Supreme Court's Web site Sept. 3.
Chinnock declined to comment last night. The family was not named in Chinnock's ruling.
John Banzhaf III, executive director of Washington, D.C.-based Action on Smoking and Health, said it was the first he has heard of a judge who raised the issue of smoking.
Courts in at least 15 states have ruled secondhand smoke can be a factor in a custody case, Banzhaf said. Many divorce decrees now include agreements to avoid smoking around the children.
While the ruling has some local attorneys and child advocates applauding, others are concerned about the parent's right to privacy.
"Secondhand smoke is a potential health hazard," said attorney David Goodwin, who represents children in foster care. "I think it's a good idea that people not smoke around children or other people, for that matter."
Typically, smoking is an issue in family court cases only when a child has a health problem such as asthma, he said. Then, case workers typically take steps to make sure the child is in a non-smoking environment, like requiring foster parents to smoke outside.
"In the abstract, children are better off not being around secondhand smoke," he said. "I would hope the parents would comply."
However, another child advocate has concerns about the ruling.
"Smoking is a legal activity," said Strongsville attorney Cheryl Alikhan. "I would worry about privacy rights and the parents' right to make decisions about their children's welfare."
Chinnock's order cites a U.S. Supreme Court ruling that allows a prisoner to go forward with his lawsuit about a smoking cell-mate. The prisoner said enduring the smoke was cruel and unusual punishment.
But Alikhan said prison is a different issue: "You lose your rights, but the state is responsible for your health."
Alikhan worried about courts weighing in on other health issues, such as childhood obesity.
"We're in a non-smoking kind of atmosphere these days, but I don't think a court can order you not to smoke in your own home," she said. "It's still legal, as is eating at McDonald's or Wendy's."