Second-hand smoke poses risks to your children..

November 9, 2009 - Last December a court banned a mother from smoking near her child in Warren County, Ohio. Now an appeals court has sided with that ruling, taking the unusual step of using "judicial notice" to conclude that second-hand smoke (passive smoking, involuntary smoking, environmental tobacco smoking, ETS, SDS) 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, Ohio 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.

Reference: Court bans mom from smoking near child by Janice Morse (jmorse@enquirer.com), Cincinnati.com, 11/8/2009.