).   The Family Court had awarded custody of a couple’s daughter to the mother.  The father later petitioned for an order awarding him physical custody of his daughter, arguing that his daughter was exposed to her mother’s cigarette smoke and that she had been burned by backing into the lit cigarettes of a member of the family of the mother’s husband.  The Supreme Court of New York, Appellate Division, Third Department found that the Family Court’s decision was amply supported by the record, that the mother demonstrated that the child was no longer exposed to secondhand smoke since she now goes outside to smoke and that the one incident of being burned by a lit cigarette was an accident.  The court concluded that “there is not a sufficient change of circumstances to support a change in custody.”

13 A.D.3d 914, 788 N.Y.S.2d 188, 2004 N.Y. App. Div. LEXIS 15820, 19.7 TPLR 2.469 (2004).