A judge awarded temporary custody of a 7-year-old asthmatic boy to his nonsmoking father and away from his mother because of exposure to secondhand cigarette smoke from his stepfather and his mother’s mother-in-law.  The Court found that “an emergency condition existed in light of the fact that the parties’ minor child is asthmatic and takes ventolin . . . ”  Judge Bill Parsons said: “I’m not saying adults can’t smoke.  I’m just saying don’t do it in front of a helpless child.  Secondhand smoke is killing children and I think it’s time for the courts of this country to help these children.”  See “Asthmatic Taken from Home Because of Cigarette Smoke,” New York Times, November 7, 1993.

On April 28, 1994, the Court of Appeal of Florida, 1st District, at 634 So.2d 1136 (1994), reversed the order.  “Because the issue of smoking and its effect on the child was not before the court herein by proper notice upon the motion for temporary custody, we reverse and set aside the order awarding appellee temporary custody and remand for further proceedings on this subject as well as any other issues bearing upon the best interests of the child.”  The court also noted that “there may very well exist, upon a proper showing substantiated by medical evidence, circumstances wherein a smoking environment may be determined to be detrimental to, and not in the best interest of, the welfare of a child.”

9.1 TPLR 2.11, No. 86-4043-CA, Division FM-A, (Fourth Judicial Circuit, Duval County (FL) 1993).