A nonsmoking father sought sole custody of his children; the mother counter-positioned, also requesting sole custody.  The District Court judge awarded sole legal and physical and legal custody to the father.  The mother appealed, arguing that the statutory presumption against awarding custody to a perpetrator of domestic violence could be rebutted only by compelling circumstances, and that the judge had not done so.  She also argued that her smoking in front of an asthmatic child did not rebut the presumption against awarding custody of children to the father.  The Supreme Court of North Dakota reversed and remanded, arguing that the district court judge improperly awarded custody to the father, who had perpetrated domestic violence, ruling that ” . . . we do not believe that the legislature intended that the presumption against awarding custody of children to a perpetrator of domestic violence be trumped by the fact that the victim-parent smokes.”  Sandstrom, J., in a separate, concurring opinion, said “I also do not agree with the majority’s trivializing the harm of cigarette smoke to an asthmatic child . . . . Under N.D.C.C. secs. 14-07.1-01, domestic violence includes ‘physical harm.’  Smoking in the presence of an asthmatic child whose health is thereby threatened may well constitute such physical harm.”

529 N.W. 2d 155, 36 ALR 5th 849 (N.D. 1995).