The couple’s separation agreement provided the mother with primary physical custody of their son.  Later, the Calhoun Circuit Court awarded the father primary physical custody, holding that the change of custody would materially promote the child’s best interests and that the good brought about by the change would offset any disruptive effect caused by uprooting the child.  The court noted that during the child’s entire life, “he has suffered respiratory infections and was diagnosed with asthma in February 1997, at which time he was also hospitalized with pneumonia.”  Despite these health problems and more than 20 visits to the doctor, the mother has continued to smoke around the child.  The court noted that “it appears that the biggest and most blatant disregard for the health of the child is attributable to” the mother.  The court further denounced the smoking around this child: “To do this to a child is no less child abuse than if you had deprived him of food or medical treatment.”  The Court of Civil Appeals of  Alabama affirmed the court’s judgment.  “After carefully reviewing the entire record, we cannot say that the court erred in awarding primary physical custody of the child to the father.”  The mother’s application on rehearing was overruled at 1999 Ala.Civ. App. LEXIS 913.

770 So.2d 1097, 1999 Ala.Civ. App. LEXIS 733.