ASH PR: 17th State Bans Smoking in Home to Protect Children [08/05-1]

Excerpts from: 17th State Bans Smoking in Home to Protect Children

By [08/04/05]

Kids Use Court Order to Force Mom to Stop Smoking

Washington state has joined at least sixteen others in recognizing that children have a legal right to be protected from the health dangers of secondhand tobacco smoke, and in the most recent case, a judge has banned all smoking in the home when either of the children is present.

Washington thus joins at least sixteen other states -- California, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee and Texas -- in issuing court orders prohibiting smoking in homes when children are present, and sometimes as much as 48 hours before they arrive. In addition, three states -- Maine, Oklahoma, and Vermont -- prohibit smoking in private homes when foster children are present.

"More and more judges are ruling that smoking around a child is dangerous, and that it can be grounds for loss of custody -- indeed, several parents have lost custody because they smoked around their children. In some cases, authorities have treated the matter as child abuse, child neglect, or reckless endangerment, and have acted on the complaint of a third party such as a relative other than the spouse, a physician, etc.
No court has ever ruled to the contrary," says law professor John Banzhaf.

Prof. Banzhaf is Executive Director and Chief Counsel of Action on Smoking and Health (ASH), a national antismoking and nonsmokers' rights organization. ASH helped start the movement to urge and assist nonsmoking parents to raise the issue of smoking in custody proceedings, and it provides legal information and advice to parents wishing to protect their children from secondhand tobacco smoke.

The most recent victory in which ASH assisted involves two children: a 13-year-old boy and a 10 year-old girl. The boy reportedly would return from visiting his mother reeking of cigarette smoke, and he suffered from recurrent ear infections, sinus infections, and asthma. Apparently as a result of the smoking ban, all of these health problems seem to have resolved themselves, and he has won 1st place in several track meets -- quite a feat for someone who once suffered from recurring asthma attacks.

Surprisingly, the judge who issued the order said he did not need to hear medical testimony from a physician -- Dr. Chris Covert-Bowlds -- stating from the bench that "everyone knows that secondhand smoke is harmful."

The children report that the mother sometimes tries to light up when they are in the house. However, they are now old enough to tell her not to, with their objections backed up by a court order and the threat of a contempt of court proceeding for the mother.

Many smokers apparently feel that the one place in an increasingly no-smoking society where they can light up is in their home, perhaps believing that their home is their castle. But, as Prof. Banzhaf notes, most other forms of child abuse also occur in the home, and parents have no right to light up marijuana cigarettes, abuse alcohol, use other recreational drugs, engage in inappropriate sexual behavior, or even allow garbage to pile up around a child -- even in their own home.

Similarly, if their smoking at home endangers the child's health, their privilege to smoke at home must give way to the child's right not to be unnecessarily subjected to toxic substances, says Banzhaf, whether those substances are asbestos, benzene, or environmental tobacco smoke -- all of which are known human carcinogens.

Similarly, in other cases in which ASH has provided assistance, nonsmokers have successfully sued persons who are smoking in their homes if the tobacco smoke drifts and/or recirculates to another apartment and/or condo unit. "There is no legal right to smoke in one's own home if it endangers or even unreasonably offends neighbors, any more than there is a right to produce tear gas in an apartment, or to play music too loudly or at inappropriate hours," says Banzhaf.

PROFESSOR JOHN F. BANZHAF III
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310
http://ash.org

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