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• Copyright 1994 American Lawyer Newspapers Group, Inc. New Jersey Law Journal July 25, 1994 SECTION: CASE DIGESTS; State Digests; Trial Courts; Pg. 56 LENGTH: 776 words HEADLINE: CUSTODY -- Cigarettes -- Matrimonial Law -- Smoking BYLINE: Digested by P.R. Chenoweth BODY: The effect of environmental tobacco smoke (ETS) is a factor that may be considered by a court in its child-custody determination as it affects the safety and health of the children, and 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. Chancery Division, Family Part, Burlington County; Unger v. Unger, FM-03-103-93; ~ opinion by Bookbinder, J.S.C.; decided March 29, 1994; approved for publication July 21, 1994. DDS No. 20-4-3824 _ This case concerns the effect of environmental tobacco smoke (hereinafter ETS) as it pertains to child custody. Christopher W. Unger, Sr. and Peggy Ann Unger were married in 1982. Mrs. Unger smoked cigarettes throughout the marriage; Mr. Unger did not smoke. Two children were born of the marriage. C.W. was born on September 16, 1982, and B.B. was born on Apri127, 1988. On July 10, 1992, Mr. Unger filed for divorce while residing with Mrs. Unger, and asked for custody of the children, Mrs. Unger counterclaimed, also asking for custody of the children. Pursuant to Rule 5:3-3, the family was referred to Jane F. Rittmayer, Ed.D., a psychologist, for an evaluation to aid the court; she recommended joint custody, with Mrs. Unger as the primary residential parent. Her report referred to the high-intensity stress caused by the family's living together.

~ She noted that Mrs. Unger said she smokes one and one-half packs of cigarettes daily. Dr. Rittmayer stated that, while there was no external evidence of parental addictive behavior which would interfere with the development of the children, both parents did demonstrate addictive tendencies. It is unclear whether she explicitly considered ETS as a factor in her recommendation. Of particular import is the fact that the report made no mention of any coughing by C.W. Mr. Unger obtained an evaluation of the family by Ronald S. Gruen, Ed.D., a clinical psychologist. He also recommended joint custody with Mrs. Unger as the primary residential parent. He noted that Mrs. Unger did not show defensiveness when confronted by allegations of excessive smoking and found her disarming in her admission that she smoked fairly heavily. Dr. Gruen did not consider "passive smoking" to be a critical factor in his recommendation because the children seemed to be maintaining good health despite Mrs. Unger's smoking. Mr. Unger had the children examined by John Slade, M.D., an Associate Professor of Clinical Medicine at the University of Medicine and Dentistry of New Jersey. For seven ~ years, his interest has been addiction problems, especially alcohol and tobacco. Dr. Slade reported that his examination of C.W. revealed a chronic, persistent, productive cough which suggests a chronic bronchitis. He stated to a reasonable degree of medical certainty that tobacco smoke had contributed to this problem. On May 10, 1993, a consent order provided for joint legal custody with Mrs. Unger as the primary residential custodial parent. Paragraph 15 provides: Both parties are restrained from allowing smoking of tobacco in the presence of the children at any location and any enclosed areas such as homes or automobiles and to prevent the effect of secondary inhalation of tobacco smoke. The wife shall designate _ her bedroom as the only area where she will smoke or anyone else will smoke if the children are are present in her home. The wife shall be permitted to smoke in the living area if the children are not present with the understanding that she will purchase, at her own expense, an air purifier which shall be a sufficient air purifier which shall be operated at all times when she is smoking in such area. Mrs. Unger immediately filed a motion requesting child support. Mr. Unger's cross o motion requested that the court reopen the custody issue. Pending the plenary hearing ~ on ETS, the restraints in the consent order were expanded to preclude Mrs. Unger from 0 M smoking in her home or vehicle. 4 00 CD

0 • Dr. Slade testified, relying on a report issued by the United States Environmental Protection Agency (E.P.A.) in December, 1992, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders. Dr. Slade found that C.W. had had 27 visits to doctors dealing with respiratory problems. He found that B.B. had had 38 visits to doctors for respiratory complaints. He concluded that ETS was a factor in the health problems of both children. Dr. Slade further testified that ventilating systems, such as the purifier Mrs. Unger had in place do not completely eliminate the dangers of ETS, and that smoke dissipates within eight to ten hours in an ordinarily ventilated area. He recommended that the home and car be smoke free at all times. Gerald Fendrick, M.D.., Clinical Professor at Thomas Jefferson University Hospital, Philadelphia, Pa., and the children's treating pediatrician since birth, testifying on behalf of Mrs. Unger, stated that he believes both of the children are healthy and had had fewer medical visits than those computed by Dr. Slade. Dr. Fendrick explained that C.W. told him that he had a morning cough that was not present after the summer and that C. W. denied shortness of breath with exercise. Although Dr. Fendrick could not state that the children's health would be any different had they not been exposed to tobacco smoke, he stated he prefers that no children be exposed to this smoke. The court conducted an interview with C. W., who stated that he has a cough every morning. He stated that he is a basketball and soccer player. He said that he has trouble breathing as he runs up and down the basketball court and while playing soccer. Held: One of the factors to be considered in deciding custody is the safety of the child. N.J.S.A. 9:2-4(c). Health of the child has also been held to be a relevant consideration. Muflerd v. Matflerd,10 N.J. Super. 132,136.(App. Div. 1950), certif. den., 6 N.J. 398 (1951). In addition, the court will also look at the habits of the parent, Clemmons v. Clemmons, 20 N.J. Super. 383, 392 (App. Div. 1952). The custody decision "must be based on all circumstances, on everything that actually has occurred, on everything that is relevant to the child's best interests." Baby M, 109 N.J. at 456. Nearly two decades ago, the health impact of ETS was considered in Shimp v. N.J. Bell p' Telephone Co., 145 N.J. Super. 516, 530 (Ch. Div,1976), which found that: a,° w ..~ ~ v . N ~

~ The evidence is clear and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around her who must rely upon the same air supply. 0 The Legislature has declared tobacco smoke is ". .. a substantial health hazard to a small[er] segment of the nonsmoking public." N.J.S.A. 26:3D-38; 3D-46; 3E-7. 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. These principals are most strong in this matter due to the physical condition of C.W., who has a daily cough, an occasional productive cough, and occasional shortness of breath. Dr. Fendrick did not have the benefit of C.W.'s complaints. This matter is referred for reevaluation to Dr. Rittmayer, who was not previously presented with the information regarding C.W.'s daily cough or his shortness of breath. She made her evaluation when the children were living with both parents in a tension- filed situation; she had no ability to analyze Mrs. Unger as a sole caretaker or Mr. Unger's allegations regarding serious deficiencies. Dr. Rittmayer's recommendation should consider the effect of ETS in conjunction with all of the factors listed in N.J.S.A. 9:2-4, and any facts she feels are important in her professional opinion, for example, a clearer medical evaluation of C.W. or any attempts by Mrs. Unger to mitigate the impact of ETS, by mechanical or other means. Needless to say, ETS must not be the sole factor in Dr. Rittmayer's evaluation. She should weigh it as she would weigh any other health and safety factor. In addition, she should consider the practical implications of this order on the custody arrangement. A clear assessment of the impact of ETS on C.W.'s health must be balanced with the other factors provided by the Legislature. Either party will be able to challenge Rittmayer's report with their own psychological report. If no agreement is reached by the parties based on the psychological reports, at a final custody trial the court will make its decision based on the factors provided by the Legislature, including but not limited to the effect of ETS on the children's health, the effectiveness and practicality of the limitations on smoking, Mr. Unger's allegations concerning Mrs. Unger's supervision. Dr. Rittmayer's recommendations and any other relevant information the custody trial, there has the custody status. However, the findings of the ~ Legislature and the court in Shimp_are further supported in the context of determination of child custody. While no court in New Jersey has found that the right

to smoke has risen to the level of a constitutionally protected right, even a parent's constitutionally protected right may be restricted upon a showing that the parent's activity may tend to impair the physical health of the child. In re JS.&C.,129 N.J. Super. 486, 489 (Ch. Div. 1974), aff'd,142 N.J. Super. 499 (App. Div. 1976). As the parties previously agreed, they will both be restrained from permitting smoking in the presence of the children. Both parties have been able to substantially comply with this provision. Pending a final resolution of the custody matter. Mrs. Unger may smoke in her home or vehicle when the children are not present. Mrs. Unger must ensure that there is no ETS in her home or her vehicle for ten hours before the children are present. Mrs. Unger argues that a prohibition is unreasonable because of the addictive nature of cigarette smoking. She is not being prohibited her from smoking, she is merely being limited in when and where she may smoke, as contemplated by the Legislature. Mrs. Unger has already demonstrated success both at her place of employment and through substantial compliance with the orders. Obviously, the enforceability of this order will rest substantially on the good faith of Mrs. Unger who was candid with the court about an occasional violation of its order in the past. This interim order will be completely reviewed at the time of the final custody i hearing. This slip opinion is 13 pages long. For plaintiff -- James T. Rosenberg (Kent, Grayer & Rosenberg). For defendant -- John T. Discepolo (James Logan, Jr.). LANGUAGE: ENGLISH LOAD-DATE: August 10, 1994 N O ~ W ~ O 6D 4 N O O

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