A May 1993 consent order granted joint custody of their two children to the Ungers with the mother as the primary residential custodial parent. The order specifically prohibited her from smoking in her home or car while with the children and restricted her smoking to her bedroom unless an air purifier was operating at all times when she was smoking. Three months later the father noticed one of his sons had “a deep chesty cough every day . . . ” A physician examined the children, said that air cleaners do not eliminate ETS and recommended that there be no smoking around the children. After a plenary hearing, the judge reopened the case on March 29, 1994, saying: “Clearly, the effect of ETS is a factor that may be considered by a court in its custody determination as it affects the safety and health of the children. Similarly, the fact that a parent smokes cigarettes is a permissible parental habit to consider when determining what is in the best interests of the children because it may affect their health and safety.” See Burney, M., “Wife Asks for End to Smoking Ban in Custody Case,” The Record (Bergen County, NJ) February 3, 1994; McElroy, K., “Mother’s Smoking Becomes Issue in Custody Fight,” Camden Courier-Post, March 30, 1994; “Judge Reopens Bitter Custody Case Over Smoking,” The Legal Intelligencer, March 31, 1994, 8; Winkler, R., “Custody Hinges on Restricting Mother’s Smoking,” New Jersey Lawyer, April 4, 1994, 12; Gotthelf, B., “Second-hand Smoke Ruled Custody Factor,” New Jersey Law Journal, April 4, 1994, 1, 34; and O’Steen, V., “Smoking Decision May Cloud Custody Cases,” Arizona Republic, September 21, 1994, D4.
644 A.2d 691, 9.4 TPLR 2.145, 63 U.S.L.W. 2132 (Sup. Ct. Ch. Div. 1994), NJ Super. Ct., Burlington Cty., Chancery Division, No. FM-03-103-93, (1994).