Smoke and lose your son

The March 25 issue of the New York Law Journal reports that a New York Supreme Court Justice, Robert F. Julian, has banned a divorced mother from smoking when her son stays with her. The 13-year-old boy, who lives with his father and grandparents, has overnight visits with his mother, but she will lose the right to these visits if she smokes while he is there.

This is an unprecedented ruling. All previous rulings against parental smoking have been in cases of children with some ailment that could theoretically be exacerbated by secondhand smoke. As reported by the Law Journal, Justice Julian himself "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."

This ruling is therefore as monumental in importance as it is unprecedented in law. Justice Julian massively expanded judicial power over parents by having the court assume the role of parens patriae ("government as parent").

How did Justice Julian justify his taking over the role of a parent when there is a parent present? By arguing, the Law Journal reports, "that courts have not been reluctant to interfere with parental authority when the risk to a child is great, as he found it is here" (emphasis added).

There you have it. In what will surely be one of many candidates for Scariest Ruling of the Year, a judge will not allow a son to visit his mother if she smokes, despite the fact that the boy is perfectly healthy.

And it gets worse. The poor mother smokes only in the bathroom when her son visits. So unless you confuse secondhand smoke with nuclear fallout, the boy is obviously not adversely affected by any secondhand smoke. What, then, is this case really about? It is about using secondhand smoke as a weapon in a custody dispute. And it is about the consequences of the secondhand-smoke hysteria – a judge actually believes that secondhand smoke's risk to a person's health is so great that a child can be removed from a smoking parent's home.

That a parent – in this case, the father – can use secondhand smoke as a means of depriving the other parent of custody rights should frighten even anti-smoking zealots. But, of course, it won't frighten them. Anti-smoking zealots see no greater moral good than stopping people from smoking. Hence they will celebrate, not fear, this unprecedented governmental intrusion into family life and subversion of parental authority.

On the other hand, those Americans not prone to hysteria about secondhand smoke should be quaking because of this imperious ruling.

By this judge's logic, courts may now judge as unfit any parent (not just one involved in a custody issue) simply on the basis of the health patterns he or she lives by. This may well mean, for example, that now that the government has declared obesity an even bigger killer than smoking, courts may assume the role of parens patriae if a parent serves desserts to an overweight child. If you think that is an absurd scenario, think again. There is no frontier that the combination of health hysteria, trial lawyers litigating for massive amounts of money and activist judges will not cross.

It's a good thing the men who saved Western civilization – Winston Churchill and Franklin D. Roosevelt – lived before the current anti-smoking hysteria. The former constantly smoked cigars, and the latter chain-smoked cigarettes. They would have fared rather poorly in Justice Julian's courtroom. On the other hand, the man who almost destroyed the West might have fared rather well. Adolph Hitler never touched tobacco and led the Nazi campaign against smoking – the most forceful ever waged. Until America's today.

Whatever you think about smoking, weep for the mother who cannot smoke in her own bathroom, lest her son be forbidden from staying with her. In fact, weep for America.

Dennis Prager

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