Court on its own motion in custody and visitation proceeding raised issue whether parents and others should be restrained from smoking tobacco in the presence of their healthy minor child. The Court of Common Pleas, Lake County, William F. Chinnock, J. sitting by assignment, held as a matter of first impression that based upon judicially-noticed authoritative scientific evidence that secondhand smoke is a real and substantial danger to the health of children because it causes and aggravates serious diseases in children, parents were restrained from allowing any person, including themselves, from smoking tobacco in the presence of the child.

WILLIAM F. CHINNOCK, Judge

This is a case of first impression in which the court on its own initiative issues a restraining order against tobacco smokers, restraining them from smoking in the presence of a healthy child within the court's care, to protect the child from having her health compromised by being forced to breathe secondhand smoke.

This ruling is a recognition of the law as it exists, and does not constitute an extension of the law.

In this case, the court conducted a hearing on custody and visitation in which it was admitted that adults smoke cigarettes around the child, including in her home. The court raised the issue of the danger of secondhand smoke to children, including healthy children, with the custodial parent mother and her significant other with whom she and her healthy eight-year-old daughter Julie Anne live. They responded that the court's prohibition against smoking around the child would place a strain on their relationship.

The primary issue is the degree of scientific evidence demonstrating a causal relationship between secondhand smoke and serious health problems of children. The secondary issue is the authority and duty of family courts to prevent serious harm to children by prohibiting and restraining persons from smoking tobacco in their presence.

The order in the case at bar is issued upon

(1) the finding of fact that secondhand smoke constitutes a real and substantial danger to the health of children because it causes and aggravates serious diseases in children, as evidenced by the judicially-noticed superabundance of authoritative scientific studies demonstrating this conclusion

(2) the further finding of fact that this real and substantial danger to the health of children exists regardless whether the parents are aware of it, acknowledge it, or complain about it to the court, and regardless of the condition of the children's health

(3) the further finding of fact that there is a causal relation between parental smoking and their children becoming addicted as active smokers, which not only is a serious health danger but also is a risk factor for substance and drug abuse and

(4) the legal basis of the fundamental rule of juvenile justice, the doctrine of parens patriae (the state as parent), the Ohio "best interests of the child" statute, and case law precedent of the United States Supreme Court.

A considered analysis of the facts and law of this case leads to the inescapable conclusion that a family court that fails to issue court orders restraining persons from smoking in the presence of children under its care is failing the children whom the law has entrusted to its care.

1. About one-third of the world's adults, over one thousand million people, smoke cigarettes. Half of these smokers will die prematurely, one-half of these deaths will occur during middle age, and these smokers will lose on average 20 to 25 years of non-smoker life expectancy.

2. Smoking is the leading cause and secondhand smoke is the third leading cause of preventable death in the United States. For every eight smokers killed by active smoking, passive smoking kills one non-smoker. The overwhelming majority of adults believe people have a right to be free from breathing other people's secondhand smoke.

3. Smoking causes about four million deaths annually worldwide. Smoking is responsible for approximately 15% of all deaths in the United States, killing more than 430,000 U.S. citizens each year, more than alcohol, AIDS, cocaine, heroin, homicide, suicide, auto accidents, and fire combined.

4. Smoking kills almost the same number of smokers in the United States each week of the year as would be killed in three World Trade Center catastrophes.

5. Although cigarette smoking among adults in the United States has declined since the health hazards of smoking became common knowledge almost four decades ago, the prevalence of cigarette smoking among U.S. high school students has increased. Every day on average over 3,000 additional children in the U.S. begin smoking on a daily basis. Very few people begin using tobacco as adults. More than 90% of smokers begin using tobacco before age 19, and the average age at which they begin smoking is 12 years old.

6. There is a plethora of comprehensive authoritative scientific studies on passive smoking. Every independent authoritative scientific body that has examined the evidence has concluded that secondhand smoke causes diseases affecting children.

7. A causal relation was established almost two decades ago by the United States Surgeon General between secondhand smoke and disease in healthy non-smokers, including respiratory diseases in children of parents who smoke. A decade ago, the United States Environmental Protection Agency classified secondhand smoke as a substance that produces cancer in humans. Several months ago, the World Health Organization issued its meta-analysis summary analyzing more than 3,000 studies on secondhand smoke that involved millions of people on six continents, concluding: "Secondhand smoke is carcinogenic to humans."

8. While the emphasis on passive smoking has been on lung cancer and breathing, the effects on heart disease are even more severe. Secondhand smoke causes about 15 times more deaths from heart disease than from lung cancer.

9. The National Cancer Institute estimates that secondhand smoke causes 3,000 lung disease deaths and 48,500 heart disease deaths in non-smokers each year, about the same number of Americans as died in the Vietnam War.

10. Secondhand smoke kills about the same number of non-smokers in the United States every three weeks of the year as would be killed in a World Trade Center catastrophe.

11. The adverse health effects from breathing smoke are manifest, whether one is actively smoking or is a captive involuntary passive smoker in a highchair.

12. Secondhand smoke is carcinogenic to adults and children.

13. Because the bodily tissues and organs of children are still developing, secondhand smoke has a much greater detrimental effect on them than on adults, resulting in reduced growth and development.

14. Children raised in homes with smokers are particularly susceptible to health problems linked to secondhand smoke, predominantly respiratory disorders. Children's bodies simply are more vulnerable because they are developing. These health problems extend beyond childhood, and include an increased risk of lung cancer in later life.

15. Children exposed to secondhand smoke are twice as likely to develop asthma.

16. Asthma, the most common long-term childhood disease, affects about 1 in 13 school-age children in the United States. Between 1980 and 1994, asthma increased 160% in children under age 5. Secondhand smoke causes between 8,000 and 26,000 new cases of childhood asthma each year, and aggravates the condition in 200,000 to 1,000,000 asthmatic children each year.

17. There is a strong link between parental smoking and Sudden Infant Death Syndrome, with typical studies finding a 2-to-3-fold increase in risk among children of smokers. It is reported that three times as many infants die of Sudden Infant Death Syndrome caused by maternal smoking as are killed as a result of homicide or child abuse.

18. Almost half of the world's children regularly breathe air polluted by tobacco smoke, particularly at home.

19. The vast majority of children exposed to tobacco smoke do not choose to be exposed. The major source of exposure to tobacco smoke for young children is smoking by parents and other household members. The large number of exposed children, coupled with the evidence that environmental tobacco smoke causes illness and disease in children, constitutes a substantial public health threat.

20. Overwhelmingly, children are captive involuntary passive smokers. The involuntary nature of children's exposure to second-hand smoke crystallizes the harm as egregious.

21. Courts take judicial notice that a superabundance of authoritative scientific evidence irrefutably demonstrates that secondhand smoke is a real and substantial danger to the health of children because it causes and aggravates serious diseases in children.

22. Children comprise the most abused segment of society in the world. The children of America fortunately are protected, however, by our unrivalled century-old system of juvenile justice.

23. The doctrine of parens patriae (the state as parent) is the fundamental rule of law that underlies our system of family courts and juvenile justice, providing that the state is "the ultimate parent" of children within the care of juvenile court. Under the doctrine of parens patriae, the state has an "urgent interest" in the welfare of the child, and a "duty of the highest order" to protect the child.

24. For at least a century and a half, the "best interests of the child" standard has been the polestar for family courts in Ohio and throughout the United States in determining matters involving children.

25. The Ohio "best interests of the child" statute sets a mandatory standard in directing that "the court shall consider all relevant factors" and "physical health factors" in determining visitation and custody matters. An avalanche of authoritative scientific studies is clear and convincing evidence that secondhand smoke constitutes a real and substantial danger to children because it causes and aggravates serious diseases in children, which danger is both a "relevant factor" and "physical health factor" a family court is mandated to consider under the statute.

26. Under the mandatory standard of Ohio's "best interests of the child" statute, the clear and convincing evidence that secondhand smoke causes and aggravates serious diseases in children can not be ignored by the court because a parent fails to raise it. Many people simply are unaware of the danger, but the danger exists regardless whether a parent is aware of it, acknowledges it, or complains to the court about it. The duty of the court under the statute to consider the danger of secondhand smoke to children is not conditioned upon a complaint by a parent. To hold otherwise would be contrary to the unequivocal mandatory language and manifest intent of the statute.

27. Family courts on their own initiative as standard practice in exercising their judicial duties consider other serious risks of harm to children, such as the use of alcohol and drugs by persons living in the home of the child, as a factor in determining "best interests of the child" issues. A family court has a mandatory statutory duty to similarly consider on its own initiative the serious risk of harm of secondhand smoke to children.

28. The United States Supreme Court has ruled that the harm to be considered from secondhand smoke includes both present harm and possible future harm, and accordingly family courts have an unqualified duty to consider the dangers of secondhand smoke to all children within their care, regardless of the condition of their health.

29. Secondhand smoke is a danger to all children, regardless of the condition of their health. Because of the irrefutable proof that secondhand smoke causes and aggravates serious diseases in children, it would be inherently contradictory for a family court to fail to grant to any child under its care, regardless of the condition of his health, legal protection against being compelled to breath secondhand smoke until after the child has suffered the health-destructive diseases the protection is intended to prevent.

30. Smoking restrictions automatically protect prison inmates across America from the real and present danger of being compelled to breathe secondhand smoke in places where they live. The children of America under the care of family courts, who can neither choose where they live nor speak for themselves, are entitled to the same protection afforded to prison inmates under the law.

31. Over a century ago, the Supreme Court of the United States affirmed a state supreme court decision that took judicial notice that cigarettes are "wholly noxious and deleterious to health."

32. The Supreme Court of the United States has definitively ruled that

(1) smoking is not a fundamental right,

(2) judicial notice is taken of the health-destructive effects of cigarettes and secondhand smoke,

(3) both present harm and possible future harm from secondhand smoke is a real and substantial danger to non-smokers, and

(4) secondhand smoke cannot be imposed involuntarily upon people because it is detrimental to their health.

33. The Supreme Court of the United States has definitively ruled that

(1) the constitutional right to privacy is not absolute,

(2) the state has an "urgent interest" in the welfare of the child and a "duty of the highest order" to protect the child,

(3) along with parental rights come reciprocal responsibilities, and

(4) when the interests of the parent and the child conflict to the point where the child is threatened with harm the state has an obligation to protect the welfare of the child.

34. Based upon unequivocal pronouncements of the Supreme Court of the United States, a smoker has a right of privacy to treat his health in whatever manner he chooses, but this right does not include the right to inflict health-destructive secondhand smoke upon other persons, especially children who have no choice in the matter.

35. A man's home is his castle, but no one is allowed to hurt little children even in his castle.

36. Under the 1989 United Nations Convention on the Rights of the Child, which has been ratified by the United States, courts of law, state legislatures, and administrative agencies have a duty as a matter of human rights to reduce children's compelled exposure to tobacco smoke. Family courts can protect our children by issuing court orders as standard practice restraining persons from smoking in the presence of children within their care. Legislatures can protect our children by enacting statutes prohibiting persons from smoking in the presence of children, by enacting more specific legislation directing family courts to consider the danger of secondhand smoke in determining best-interests-of-the-child matters, and by enacting statutes directing administrative agencies to establish regulations restraining smoking around children in their care. Administrative agencies can protect our children by enacting regulations and issuing directives that foster parents and other persons in close contact with children in their care shall not smoke around them.

37. A causal relation exists between parental smoking and their children becoming addicted to nicotine as active smokers, exposing them to the serious diseases of smokers. Children of smokers are almost twice as likely to smoke as children of nonsmoking parents. Numerous studies have found tobacco products to be as addictive as heroin, cocaine, and alcohol. Once children become addicted to nicotine by smoking cigarettes, usually within a year or less of beginning smoking, they are likely to suffer the detrimental health consequences of active smokers because only a small percentage of cigarette smokers are successful in quitting smoking.

38. Parental smoking is a key factor in children becoming active smokers, which not only constitutes a serious health danger but also is a risk factor for substance and drug abuse

39. The synthesis of active smoking by parents, the glamorization of smoking by the film industry, and the targeted marketing of tobacco products to children by the tobacco industry is a deadly combination for children.

40. The evidence is overwhelming and irrefutable

(1) that smoking tobacco causes and aggravates serious diseases in smokers,

(2) that secondhand smoke causes and aggravates serious diseases in non-smoking adults and children, and,

(3) that children are especially susceptible to diseases caused by secondhand smoke. For these reasons, a family court that fails to issue court orders restraining persons from smoking in the presence of children within its care is failing the children whom the law has entrusted to its care. For these compelling reasons, the mother and father are restrained under penalty of contempt from allowing any person, including themselves, to smoke tobacco anywhere in the presence of the minor child Julie Anne.

WILLIAM F. CHINNOCK, J., retired, of the Cuyahoga County Juvenile Court, sitting by assignment.

1. The instant case is a companion to the collection of cases discussed in the annotation found at 36 ALR 5th 377 entitled "Smoking as Factor in Child Custody and Visitation Cases," and in the law review article found at 97 W. Va. Law Rev. 115 (1994) entitled "Secondhand Smoke as an Issue in Child Custody/Visitation Disputes," holding that the danger of secondhand smoke to children is a "best interests of the child" factor in a family court determining visitation and custody issues.

In the annotated cases, as in this case, judicial notice is taken of the danger of harm of secondhand smoke to children a well-grounded legal presumption based upon judicial notice obviates the need for expert testimony.

In this case, judicial notice of the danger of secondhand smoke to children is based upon an avalanche of cited authoritative scientific evidence. This case differs from the annotated cases, however, in several significant respects. First, in the annotated cases the issue of the danger of secondhand smoke to the child is raised by a non-smoking parent.

In this case, the issue is raised by the court on behalf of the child under the parens patriae doctrine, based upon the duty imposed by law upon family courts to prevent risk of serious harm to a child, regardless whether the risk is known, acknowledged, or complained of by a parent.

The ruling on this point of law is mandated by the plain language and manifest intent of the Ohio "best interests of the child" statute.

Second, in the annotated cases the child has a respiratory problem and the legitimate objective is to prevent it from becoming worse.

In this case, the child is healthy and the legitimate objective is to prevent the onset of the destruction of the child's health.

The ruling on this point of law is supported by United States Supreme Court case law.

Neither of these points of law applied to the two above-specified factual differences between the annotated cases and the case at bar is meant to suggest that the risk of secondhand smoke to children should in all cases be the sole factor in determining the "best interests of the child."

Under existing law a family court on its own initiative and regardless of the health of the child, however, has a legal duty to consider the danger of secondhand smoke to children as a significant and possibly determinative factor (where child has health problems) in determining issues of visitation and custody, and to protect children under its care as a matter of standard practice by issuing a court order restraining anyone from smoking in their presence.

JUDGE WILLIAM CHINNOCK