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In an apparent case of first impression, a judge in Utica, N.Y., has prohibited a mother from smoking in the presence of her 13-year-old son. What makes Supreme Court Justice Robert F. Julian’s order in a visitation matter extraordinary is that he banned the parent from smoking even though the youth is neither allergic to cigarette smoke nor afflicted with a disease such as asthma that could be exacerbated by exposure. Julian cited scientific evidence on the generally adverse health effect of second-hand smoke, and found that continued exposure to environmental tobacco smoke is not in the best long-term interests of the child. Julian said courts in New York and several other states have banned parental smoking when it related directly to a current and ongoing malady suffered by an offspring. However, the judge said he was unable to find any decision ordering parents to maintain a smoke-free environment absent an underlying diagnosis of asthma, allergy or another disorder. Johnita M.D. v. David D.D., D-37432, arose when the child, Nicholas D., complained of maternal smoking during court-ordered visitations. The boy lives with his father and grandparents, who do not smoke, and has overnight visitations with his mother. In August, Nicholas and his law guardian approached Judge Julian, who held an in-camera proceeding to consider the youth’s concerns. The boy complained that his mother smokes in her bathroom during all of his visitations and that the apartment reeks of smoke. He also said the mother smokes in the car. The mother contended that her indoor smoking occurred primarily during the winter, and suggested that the father was the impetus behind the motion. She also argued that the smoking issue is simply a subterfuge to avoid visitation. Justice Julian, however, said the motive behind the motion is irrelevant since the behavior at issue — smoking — is demonstrably dangerous to the child. “Even though Nicholas does not presently have asthma, exposure to Environmental Tobacco Smoke apparently significantly increases his risks of developing, either as a child or as an adult, asthma, coronary artery disease, lung cancer, and certain chronic respiratory disorder[s], to name the most significant conditions,” Julian wrote. The court took judicial notice of scientific literature on the health impact of second-hand smoke and gave the parties 30 days to object, after which the order is binding. Under that order, both parents are barred from smoking or allowing others to smoke in their homes or automobiles when Nicholas is present. There have been several New York decisions in recent years where courts have prohibited parental smoking in a household occupied by a child with a diagnosed illness. Courts in New Jersey, Pennsylvania, Louisiana, Tennessee and North Dakota have ruled similarly. But Julian went a step further in assuming a parens patriae role. He noted that courts have not been reluctant to interfere with parental authority when the risk to a child is great, as he found it is here. “With regard to health care, the state will intervene even to the extent of overriding the religious convictions of the parents,” Julian said. “No element of American liberty is more highly cherished or jealously guarded than religious freedom, yet in its role as parens patriae, and for the protection of the health and welfare of children, the state may and will contravene a family’s religious beliefs and obligations,” Julian wrote. “The [mother's] interest in unhampered cigarette smoking cannot be said to be greater than the religious interests advanced by others wishing for parental judgment to overcome a child’s best interests.” CUSTODY BENEFITS SEEN The law guardian, William L. Koslosky of Koslosky & Koslosky in Utica, said the youth is “elated” with the decision. “The boy had a really difficult time visiting with the mom for many different reasons, but one of the prime reasons was the smoking,” Koslosky said. “I think the judge was rather impressed that there was no ulterior motive … and that this was a very genuine concern that the kid had regarding smoking, and not only for his well-being, but also for his mother.” Koslosky said the precedent, if it holds, will have a positive impact. “As far as custody cases, I think it is going to be very good, especially for children who are younger,” he said. Joan T. Shkane of Shkane & Shaheen in New Hartford, N.Y., represents the mother. She was not immediately available for comment. The attorney for the father, Kurt D. Parry of Rome, N.Y., said the order “takes children out of a harmful situation and acknowledges that harm could be brought to them as a result of smoking. I think clearly the court is looking to do what is in the best interests of the child. Here, we were dealing with a mature 13-year-old individual who was able to recognize the risk.”

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