Divorce: Where There’s Smoke, There’s Now Ire : Children are caught in the middle as more parents want smoking considered in custody battles. Tobacco lovers are fuming and say it’s a privacy issue.

Smoking was always a personal issue for Sara Harkness and Steve Henderson. Toward the end of their 12-year marriage, they drove to family get-togethers in separate cars. They traveled apart in nonsmoking and smoking sections of airplanes.

After they divorced, the couple still fought over his two-pack-a-day habit. When their two children came back from biweekly visits with Henderson, Harkness said, “They would walk in smelling like little smoke bombs. When I opened their backpacks, puffs of smoke residue came out.”

But now the matter has outgrown the personal realm. Harkness is asking a Contra Costa County judge to prohibit her ex-husband from smoking around the children.

“Ignorance is one thing,” she said. But as more reports show the negative health effects of secondhand smoke, Harkness, a nursing student, claims it’s an issue of deliberate child endangerment.

Since 1988, there have been at least 18 smoking-related decisions in custody and divorce cases, said Georgetown University law professor John F. Banzhaf, executive director of the Action on Smoking and Health, a Washington, D.C.-based organization that promotes nonsmokers’ legal rights.

Some parents and anti-smoking forces say secondhand smoke is sufficiently dangerous to some children to consider it when assigning custody, while others contend that the courts have no business telling them whether they may smoke in their own home.

Unlike most cases in which judges have granted requests for a smoke-free environment or used smoking to determine parental fitness, Harkness’ children have not been found to have chronic respiratory disease.

Henderson, an attorney, does not speak publicly about the case for the sake of his daughters’ privacy, said his attorney, C. Clay Greene. Henderson is contesting his ex-wife’s bid for a restraining order, claiming that he has a right to smoke in his home and that it is an “inappropriate exercise of the court’s jurisdiction to go into this smoking issue in custody cases,” Greene added.

A judge will consider Harkness’ request in March.

To smokers, the case represents more than just a slippery slope of eroding privacy rights. “It’s a cliff,” said Walker Merryman, vice president of the Tobacco Institute. “Judges could begin making fine-grain determinations about how many hours of TV a child can watch, or how many times the parent takes the child to a fast-food restaurant.”

Rather than health concerns, Merryman suggests that the cases are propelled by hostility. “There’s a lot of bitterness. A lot of rancor. These parties use whatever emotional claim they think they can in order to be successful.”

“The problem in these kinds of cases is you introduce issues of secondhand smoke or diet or any other factor that just continues the dispute between the parents,” Greene said. “It’s just one more thing to fight about when what the case needs is finality.”

Earlier this fall, a Sacramento father, who had been seeking custody of his daughter for six years, accused her mother of child endangerment through smoking.

To support his claim, he produced urine-test results showing unhealthy levels of nicotine in his daughter, who has asthma. The mother denied smoking near her daughter and claimed that the father was only trying to detract from her charges that he was unfit.

In October, a judge agreed that the mother’s smoking was a threat to her daughter’s health. But she also denied permanent custody to either parent and ordered them both to undergo psychological evaluations. Meanwhile, the child is staying with her paternal grandmother.

The majority of informal smoking agreements between divorced parents is neither reported nor contested, Banzhaf said. “Many smokers agree it is inappropriate to subject their children to tobacco smoke.”

Of the orders obtained so far, many require the parents to protect their children from tobacco smoke, no matter whether it comes from themselves, boyfriends, girlfriends, relatives or strangers in a restaurant. One order prohibited smoking in a parent’s house 48 hours before the child was scheduled to arrive for a visit.

In one case, a Tennessee judge refused to grant custody to the mother of a child who had asthma, even though she had entered a stop-smoking program, reasoning that she was more interested in custody than in the child’s welfare. “It’s like a candidate who gives up membership in a sexist club just to get elected,” Banzhaf said.

As a result of “no fault” divorce laws over the past two decades, judges have been forced to base custody decisions on issues that might have seemed like nit-picking two decades ago, Banzhaf said.

New information on the health hazards of secondhand smoke for children, such as a report issued in January by the Environmental Protection Agency, has given family law attorneys a new tool when all other considerations, such as parenting ability or home environment, are equal, he said.

*

The report concluded that secondhand smoke causes about 3,000 lung cancer deaths each year in nonsmoking adults and impairs the respiratory health of hundreds of thousands of children. The report also noted that secondhand smoke increases the risk of bronchitis and pneumonia, estimating that it is responsible for 150,000 to 300,000 cases annually in children under 18 months old.

Further, the conditions of up to 1 million children with asthma may be worsened by tobacco smoke, the report said.

Banzhaf said the next legal step for nonsmokers’ rights activists is to target medically fragile children in stable family situations. “What is beginning to happen informally is (that) appropriate officials are receiving complaints about children who have a serious sensitivity to tobacco smoke. The parents are warned, ‘If you continue, a formal proceeding will be brought,’ ” Banzhaf said.

In one case, a judge removed a 3-year-old child from biological parents even though they were not divorcing. The Maryland judge placed the girl, who has severe asthma, in a foster home because her biological parents ignored medical advice to protect the child from tobacco smoke.

But some family law attorneys doubt that child endangerment charges will be very successful with healthy children.

“The child abuse and neglect agencies still have not taken a position that (smoking) would be a manifestation of abuse and neglect. Until you get that as a standard of abuse, then you are not making a terrific case of endangering the child,” said Ellen J. Effron, a family law specialist with the American Bar Assn.

Smoking can be a factor in custody cases, she said, “but it has to be piggybacked onto other factors, like the particular fragility of the child.”

Meanwhile, Harkness said she’s done some soul-searching to make sure her motivation is not to control her ex-spouse. “I don’t think it is. There’s no personal gain for me.

“My biggest surprise is that he wouldn’t agree to not smoke around them. (Maybe) if it’s coming from me, he perceives it’s something I’m picking on him about and is not able to look at what’s in the best interest of the girls.”

She said that as a nursing student, she has seen many children come to the emergency ward in respiratory distress as a result of their parents’ smoking.

Her main interest is the health of her children, she said.

“I don’t want to find out 10 years from now it’s a problem.”