No smoking around your daughter.
That was a Warren County court’s order to a mother last December – and now an appeals court has sided with that ruling, taking the unusual step of using “judicial notice” to conclude that second-hand smoke is a danger to a child.
In a decision that could apply to many other child-custody and visitation cases, the Ohio 12th District Court of Appeals in Middletown upheld the Warren court’s decision forbidding anyone from smoking around Victoria Anderson, 9. Since she was a baby, she has lived with her great-grandmother in suburban Dayton, Ohio; she gets “parenting time” with her divorced mom and dad.
In April 2008, Victoria’s paternal great-grandmother, Marilyn Anderson, objected to the child’s mother, Racheal Hill, smoking around Victoria during visits. The child returned home “smelling of cigarette smoke as a result of Racheal smoking in her home and car,” court records say.
Eight months later, the court ordered all parties to protect Victoria from second-hand smoke; the appeals court, which oversees an eight-county area, upheld the smoking ban Oct. 26.
Disputes over parental smoking have been cropping up in family-court cases nationwide, legal experts say, and the cases highlight two competing interests: A parent’s right to smoke versus a child’s right to breathe smoke-free air.
Courts appear to be deciding such clashes based on the “best interest of the child,” rather than whose “rights” win out, Kansas lawyer Jeanette Igbenebor wrote in a 2002 article, “Smoking as A Factor in Child Custody Cases.”
The article recommends: “As a simple truism, parents who wish to retain custody of their children should not smoke in front of them.”
Action on Smoking and Health, a non-smokers’ rights group in Washington, D.C., says courts in at least 18 states have ruled that “subjecting a child to tobacco smoke is a factor which should be considered in deciding custody.”
In the Warren County case, even with no evidence that Victoria suffers specific reactions or health issues from exposure to smoke, the court ruled that a smoking ban was in the child’s best interest.
To reach that conclusion, the court did something unusual. It “took judicial notice” – without anyone presenting proof in court – of an “avalanche of authoritative scientific studies” that say second-hand smoking poses risks to children.
Taking judicial notice is fairly unusual, said Marianna Brown Bettman, a University of Cincinnati law professor.
“This could be viewed very broadly in future cases,” she said. “If you don’t have to prove that smoking is harmful to your child specifically…then that could become kind of a general order in almost any case.”
Bettman wonders: “Is this going to be now a general standard that’s fair to raise in a disputed child custody case?”
Dayton-area attorney David McNamee, who represents Victoria’s great-grandmother, thinks it should be.
McNamee, who devotes about 90 percent of his law practice to family-court issues, said smoking has become an issue in more child visitation and custody cases during the past five years or so.
Mitchell Karpf, a Florida lawyer who chairs the American Bar Association’s Family Law Section, predicts the smoking issue could evaporate from the courts in coming years. As pressure to quit smoking increases, the number of smokers dwindles, he said.
In the meantime, courts likely will treatshop-cigarette.biz/cigarettes/marlboro/ “no differently than any other health hazard to a child,” Karpf said.
In Ohio, no-smoking rulings date to at least 2002, when the state Supreme Court upheld a Lake County judge’s decision prohibiting anyone from smoking around a healthy child. That judge acted on his own initiative.
Often, parties agree they shouldn’t smoke in front of kids, McNamee said. McNamee says that he is a smoker, but has never lit up in the presence of his 8-year-old daughter.
Andrea Ostrowski, a Springboro lawyer who represented Racheal Hill, said the case is about a bigger principle than her client’s desire to smoke.
“She doesn’t necessarily mind stepping out of the house (to smoke) when the child is there,” Ostrowski said.
Rather, Hill objects to the court’s “intrusion into her home,” regulating even a legal activity such as smoking, Ostrowski said. The court ruling also limits where Hill can take her daughter, such as to the home of a friend who smokes.
Ostrowski is concerned that the smoking ban “can be used as leverage” against Hill during future visitation and custody proceedings. Hill could be hauled into court on the mere suspicion that she smoked around the child, facing a contempt charge that could bring jail time, Ostrowski said, adding: “How do you prove that you didn’t do something?”
Ostrowski also is concerned that custodial parents could cite this case as an example and try to get courts to enforce limits on other legal activities of non-custodial parents. “The court has opened that door,” she said.
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