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Can a Judge bar a parent from smoking around a child?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A Family Court Judge in New York has prohibited a mother from smoking in the presence of her 13 year old son. But what makes this visitation order extraordinary is that he banned the mother from smoking, even though the child is neither allergic to cigarette smoke nor afflicted with a disease, such as asthma, that could be exacerbated by exposure to cigarette smoke.

Justice Robert F. Julian cited scientific evidence on the generally adverse health effects of second-hand smoke and found that continued exposure to environmental tobacco smoke is not in the best long-term interests of the child. Justice Julien said courts in New York and several other states have banned parental smoking when it was directly related to a current and ongoing malady suffered by an offspring. However, the Judge said he was unable to find any decision ordering parents to maintain a smoke-free environment absent an underlying diagnosis of asthma, allergy or another disorder.

The 2001 case of Johnita M. D. v. David D. D., D-0-37432, arose when the child, Nicholas, complained of smoking during access visits with his mother. Nicholas lives with his father and grandparents, who do not smoke, and has overnight visitations with his mother. In August 2001, Nicholas, through his law guardian, sought an in-camera proceeding to consider the complaint that his mother smokes in the bathroom and in the car during all of his visitations and that the apartment reeks of smoke. Even though the mother argued that the father was the real cause of this complaint to reduce and avoid visitation, Justice Julian decided that the motive for the complaint is not relevant since the behaviour at issue, smoking, is demonstrably dangerous to the child.

The court stated that “even though Nicholas does not presently have asthma, exposure to environmental tobacco smoke apparently significantly increases his risks of developing, either as a child or as an adult, asthma, coronary artery disease, lung cancer, and certain chronic respiratory disorders, to name the most significant conditions.”

Steven Benmor

About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.