).  Paternal grandparents of a seven-year-old child were removed as guardians and permitted visitation on the express condition that they “shall not smoke in front of” the child “nor permit anyone else to do so.”  After the child’s mother was killed in an automobile accident, the child’s paternal grandparents were appointed as his guardians.  The child’s maternal grandmother later moved that the Court remove the paternal grandparents as guardians and appoint her instead on the grounds, inter alia, that the child “is constantly exposed to dangers of secondhand smoke” while in their home. At the start of the trial, the Court approved the maternal grandmother’s motion in limine for judicial notice, which sought notice be taken “that environmental tobacco smoke (also known as secondhand smoke, hereinafter referred to as ‘ETS’) is scientifically linked to negative health issues and is a health risk to children.”  The Court allowed the motion to the extent “that it is or may be harmful in general to children, but this is not a ruling as to the subject child.”

The Court found that the child “did have asthma as a much younger child and appears to have outgrown it but is still susceptible to respiratory distress brought on by triggers or irritants including smoking.” The paternal grandmother smokes a pack of cigarettes per day while the paternal grandfather smokes four cigars per day.  “In the context of this case and the smoking regularly in the presence of the Child, they are each unrepentant smokers.”  The Court took “judicial notice of current research that shows second-hand smoke or environmental tobacco smoke (ETS) can cause respiratory problems, including asthma and reactive airway disease, in children” and made a finding that exposing this child “to a smoking environment is contrary to his best interest.”  The Court further found that the paternal grandparents “are largely unconcerned about the possibility” that the child “may continue to have asthma, reactive airway disease, allergies, or other respiratory problems.”

The Court concluded that the paternal grandparents “have disregarded the multiple recommendations and warnings of physicians and continue smoking” in the child’s presence “constitutes a sufficient change in the circumstances of their suitability as guardians.” Therefore, the Court terminated their role as guardians of the child and issued a decree regarding visitation that they “shall not smoke” in front of the child “or permit anyone else to do so.”

Probate and Family Court Dept., Hampden (MA) Division, No. 01P1072 (2003).