Home Smoke-Free Home

By Andrea Sachs

Steven Masone hasn't lived with ex-wife Susan Tanner for seven years, but he still can't get over one of her habits: chain smoking. It bothers him because it bothers their daughter Elysa, 8, who suffers from asthma. Masone, a minister in Stockton, California, worries that Tanner is aggravating Elysa's condition by lighting up around her. He even got a court order five years ago, barring Tanner from smoking in Elysa's presence. But Tanner's puffing -- and Masone's huffing -- continued. Finally, after Elysa had an asthma attack this month, a doctor said the child would end up in an emergency room if things ! didn't change. Frantic, Masone went back to court. Last week, in a ground- breaking decision, a county judge gave temporary custody of Elysa to Masone's mother, ruling that Tanner's smoking was endangering her daughter's health.

It's not unusual for courts to rescue children from their own homes, but their parents are usually charged with gross neglect or abuse. Tanner, who plans to appeal, is losing her daughter for doing something that is perfectly legal, even if it is frowned upon by the Surgeon General. Hers is one of a growing number of cases, mainly involving children in divorce custody suits, in which judges have prohibited parents from smoking around kids who are sensitive to tobacco. Legal Times reported this month that courts in at least 11 states have dealt with the issue, almost always siding with the nonsmoking parent.

The legal actions herald a major new offensive by America's antismoking forces. Their campaign, having stormed through airplane cabins, office buildings and restaurants, is moving into the home. "Parents exposing their children to secondhand smoke is the most common form of child abuse in America," argues attorney John F. Banzhaf III, the executive director of Action on Smoking and Health (ASH). Banzhaf, a longtime foe of the tobacco industry and mastermind of the child-protection strategy, got a major boost in January, when an Environmental Protection Agency report concluded that secondhand smoke causes 3,000 American adults to die of lung cancer each year. The study also blamed proximity to smoking for hundreds of thousands of cases of childhood respiratory illnesses, such as bronchitis, pneumonia and asthma.

The tobacco industry, which sued the EPA over the report, disputes the court judgments against smoking parents, arguing that the case against secondhand smoke hasn't been proved. In fact, some prominent scientists, including epidemiology expert Alvan Feinstein of the Yale medical school, believe the EPA may have overstated the evidence in its study. Nonetheless, most health researchers agree it is prudent to keep children away from smoke as much as possible.

Whatever the scientific conclusions, Bill Wordham, a spokesman for the Tobacco Institute trade group, contends that the court cases are an invasion of privacy: "We have to ask ourselves where this would stop. Is a parent who habitually takes a child to MacDonald's or otherwise feeds that child unhealthy food any less deserving of custody? What about a parent who allows his child to watch long hours of television?" Some nonindustry observers agree, conjuring up visions of government antismoking patrols. Says Thomas Harvey Holt, a Visiting Fellow at the Capital Research Center in Washington: "Smokers soon may find social-services agents on their doorsteps, asking 'May I come in and make sure there are no cigarettes, cigars or pipes on your premises?' " Counters ASH's Banzhaf: "Nobody is telling parents they can't smoke. We're simply saying they can't smoke around their children. This is no different from protecting children from lead-based paint or other risks in the home."

Legal experts predict a continued surge in suits against smoking parents. If that happens, Joseph LaMacchia, founder of Parents Against Second-Hand Smoke in Watertown, Massachusetts, will take some of the credit. LaMacchia teaches nonsmoking parents how to build such cases. In a 40-page booklet that costs $6, he advises parents to keep a log of their children's physical problems and have their urine or saliva tested to prove overexposure to smoke.

Banzhaf is looking forward to the day when it won't take a custody battle to defend children against secondhand smoke. "I am certainly not suggesting that every time a parent lights up in the same room, we're going to cry child abuse," he says. "But the same protection will eventually be extended to children in ongoing marriages through child-neglect proceedings." Most public health officials share Banzhaf's exasperation. Says Dr. Ronald Davis, medical director of the Michigan public health department: "When I see parents smoking around their kids, I have the same reaction as I do toward parents with a carful of kids who aren't wearing seat belts: 'What are you doing, people?' " As judges get involved, more parents are likely to be asking themselves that very question.

With reporting by Elizabeth Brack Mullen/San Francisco