A couple’s 12-year-old son has a history of pulmonary disorders dating back to 1986 and has been treated by many physicians.  There has been “longstanding medical advice that the parents must maintain environmental control of allergies, including tobacco smoke, to which Samuel has a significant positive reaction.”  While the father and his new wife no longer smoke, the mother and her new husband smoke and do so in the presence of Samuel.  The Court took “judicial notice of the hazards to health caused by cigarette smoke, both actively and passively.”  The Court ruled that “[w]e are at a point in time when, in the opinion of this judge, a parent or guardian could be prosecuted successfully for neglecting his or her child as a result of subjecting the infant to an atmosphere contaminated with health-destructive tobacco smoke . . . . Because the father has taken steps to protect his children’s health, and because he and his wife have modified their own lifestyle to eliminate smoking from it, primary physical custody of Samuel Lizzio and Patricia Lizzio shall be with the father.”  Joint custody continues; during the time that either parent has custody, “[n]o tobacco smoking is permitted in either household.”

On April 4, 1996, the Supreme Court of New York, Appellate Division, 3rd Department, in Lizzio v. Jackson, 640 N.Y.S. 2d 330, 1996 N.Y.App.Div. LEXIS 3463 (1996), modified the order by reversing the part that had awarded custody of the parties’ children to the petitioner.  While the Family Court had concluded that “but for that issue [respondent’s smoking] and the health risk that smoking poses, the court would continue the custody arrangement as the parties agreed some years ago.”  The Supreme Court of New York ruled that “a review of the record compels us to conclude that this factor alone did not warrant a change in physical custody . . . ”  Since 1991, when the Family Court issued a temporary restraining order prohibiting either parent from exposing the son to tobacco smoke, the respondent and her current husband smoke outside or on the back porch.”  Both parents must continue to observe the Family Court’s order directing adherence to the instructions of their son’s allergist.

618 N.Y.S. 2d 934, 1994 N.Y. Misc. LEXIS 496, Family Court of New York, Fulton County.