The parties, parents of two children, divorced and entered into a June 1994 separation agreement whereby they maintained joint custody.  Petitioner commenced a proceeding in August 1999, seeking a modification of the custody agreement to award him primary physical custody of the children.  The Family Court granted his application.  On appeal, the Supreme Court of New York, Appellate Division, Third Department, affirmed.  The court noted that “although the parties’ son suffers from asthma, a number of witnesses testified that respondent’s house frequently smelled of smoke or that they had observed individuals smoking in the house.”  Based on, inter alia, the son’s exposure to secondhand smoke at his mother’s home, the court concluded that “petitioner demonstrated a change in circumstances sufficient to warrant a modification of custody.”

717 N.Y.S.2d 799, 279 A.D.2d 677, 2001 N.Y. App. Div. LEXIS 51.