The thesis of this brief article is simply that the tobacco habits of a parent are relevant and worthy of consideration when a child is asthmatic, or suffers from some other definable medical condition which would be exacerbated by passive smoke. However, when the child is healthy and there exists no definitive short-term medical risk, the issue should be irrelevant. In other words, the court should consider those factors, and only those factors, which are of significant importance to the child, such as stability, caretaker skills, home environment and the child's wishes. Concededly, second-hand smoke is harmful even to a healthy child, or for that matter a healthy adult. But the risk is no greater than a multitude of potential harms every youngster faces, ranging from unbuckled automobile seatbelts to the consumption of junk food. Courts should focus exclusively on those factors which are important to every child, such as bonding and stability, as well as those factors which are important to the case specific child, such as explicit health or educational needs. Any other consideration intensifies the emotional and often nasty course of litigation, and diverts the court from more essential issues.
Merril Sobie, Second Hand Smoke and Child Custody Determinations-A Relevant Factor or A Smoke Screen?, 18 Pace L. Rev. 41 (1997), available at http://digitalcommons.pace.edu/lawfaculty/364/.