Increasingly, judges are considering the very harmful effects of secondhand tobacco smoke on children involved in divorce and custody disputes, and taking appropriate action to protect them. In some cases, parents have actually been denied custody because they smoke.
More commonly, however, says Banzhaf, who developed the legal theories under which nonsmokers are challenging their former smoking spouses, a judge will permit the child to visit the smoker, but only if there is no smoking in the home - sometimes 24 or even 48 hours prior to the visit.
Such judicial orders, banning smoking in homes while the child is present and for a reasonable period before visitation, are designed to protect the child from the well known hazards of secondhand tobacco smoke, and have been issued in about three fourths of all the states over a period of some 20 years.
But these judicial protective orders, in many states now being issued routinely, may no longer be sufficient to adequately protect a child, according to a new study at the University of California, Riverside, which found that third-hand smoke can be just as deadly as secondhand smoke.
Third-hand smoke, previously known as tobacco smoke residue, is the "tobacco smoke contamination that remains after the cigarette has been extinguished,"
The Riverside study found that third-hand smoke can accumulate on surfaces and in house dust, and age over time, becoming progressively more toxic with carcinogens. Like secondhand tobacco smoke, it contains highly carcinogenic compounds, heavy metals, hydrogen cyanide (used in chemical weapons), butane (used in lighter fluid), toluene (used in paint thinners), arsenic, lead, and even radioactive Polonium-210 (used to murder a Russian spy).
Indeed, another study found that the nicotine in secondhand smoke - and also found on surfaces following the use of e-cigarettes - while not generally regarded as capable of causing cancer by itself, changes chemically over time to become a deadly carcinogen when the residue from a tobacco product or e-cigarette is exposed to another common chemical in the air.
The Riverside scientists reported that third-hand smoke has been found to persist in houses, apartments and hotel rooms long after smokers move out. They say that their research shows that children in environments where smoking has been allowed in the past are still at “significant risk” for suffering from multiple health problems, "many of which may not manifest fully until later in life."
Indeed, other studies have shown that third-hand smoke is far more dangerous to children than to adults. There bodies are much smaller, so that concentrations of toxins per unit weight or volume are higher. Children are also more likely to touch their hands to their mouths than adults, thereby readily introducing the toxins they picked up from touching the surfaces into their bodies.
Also, children's bodies, and therefore their body's defense mechanisms for dealing with chemical and other similar invasions, are still developing and are therefore immature and less effective - the same reason children are more likely than adults to have allergic reactions, catch colds, and have ear aches.
A federal court has gone so far as to hold that even an adult employee whose health is adversely affected by tobacco smoke residue had a legal cause of action under the Americans With Disabilities Act [ADA] against an employer who refused to reduce this exposure in his workplace.
Prof. Banzhaf explains that this new study would provide a legal basis for a nonsmoking parent to reopen and modify a custody proceeding by arguing that a temporary ban on tobacco use by the smoking parent, or other smoking resident of the home, provides insufficient protection for the child's health.
He said he would be willing to work with and assist attorneys seeking to reopen custody determinations on that legal basis.
Once accepted by the courts, this new argument, and the scientific research supporting it, could result in parents who continue to smoke losing custody or visitation rights they may have previously enjoyed.
To those who argue that this might be going too far, Banzhaf notes that, to protect the health of foster children, parents in homes in which foster children reside are prohibited, in more than a dozen states, from smoking inside the home.
At the very least, this new study and others like it provide a strong new legal argument for modifying custody and/or visitation orders to require the smoking parent, and other adult members of the household, to confine their smoking to areas or rooms which the child would not be visiting and thereby be exposed to carcinogens and other toxins. These could include a garage or large storage shed, or the parent's bedroom if the child never visits it, suggests Banzhaf.
As the percentage of smokers continues to decline, and as the dangers of tobacco smoke to nonsmokers become better understood and appreciated, members of the public - as well as regulators and legislators - are willing to go much further to protect children than they would have been in the recent past.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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