This case concerns the effect of environmental tobacco smoke (hereinafter ETS) as it pertains to child custody.
Christopher W. Unger, Sr. and Peggy Ann Unger were married in 1982. Mrs. Unger smoked cigarettes throughout the marriage, while Mr. Unger did not smoke during the marriage. Two children were born of the marriage. C.W. was born on September 16, 1982 and B.B. was born on April 27, 1988.
On July 10 1992 Mr. Unger filed for divorce while residing with Mrs. Unger. In his complaint, Mr. Unger asked for custody of the children. Mrs. Unger counterclaimed also asking for custody of the children.
Pursuant to R. 5:3-3 the family was referred to Jane F. Rittmayer Ed.D., a psychologist, for an evaluation to aid the Court in its determination of custody. Dr. Rittmayer's report dated December 29, 1992, recommended joint custody, with Mrs. Unger as the primary residential parent. Her report referred to the high intensity stress caused by the family living together. The doctor found that Mrs. Unger smokes excessively, noting that Mrs. Unger said she smokes one and one half packs of cigarettes daily. She further stated that while there was no external evidence of parental addictive behavior which would interfere with the development of the children, both parents did demonstrate addictive tendencies. It is unclear whether Dr. Rittmayer explicitly considered ETS as a factor in her recommendation. Of
particular import is the fact that the report made no mention of any coughing by C.W.
Mr. Unger obtained an evaluation of the family by Ronald S. Gruen, Ed.D., a clinical psychologist. Dr. Gruen's report dated March 28, 1993, also recommended joint custody, with Mrs. Unger as the primary residential parent. He noted that Mrs. Unger did not show defensiveness when confronted by allegations of excessive smoking. He found Mrs. Unger was disarming in her admission that she smoked fairly heavily, Dr. Gruen did not consider "passive smoking" to be a critical factor in his recommendation because the children seemed to be maintaining good health despite Mrs. Unger's smoking.
In preparation for a final custody trial, Mr. Unger had the children examined by John Slade, M.D., an Associate Professor of Clinical Medicine at the University of Medicine and Dentistry of New Jersey. For approximately seven years, his interest has been the issues of addiction problems, especially alcohol and tobacco. Dr. Slade reported on March 26, 1993 that his examination of C.W. revealed a chronic, persistent, productive cough which suggests a chronic bronchitis. He stated to a reasonable degree of medical certainty that tobacco smoke had contributed to this problem.
On the date of the custody trial it was reported that the custody case was settled. On May 10, 1993 an 18 paragraph custody consent order was signed to finally resolve the matter of child custody. This consent order provided for joint legal custody with Mrs. Unger as the primary residential custodial parent. Paragraph 15 of the consent order provides as follows:
Both parties are restrained from allowing smoking of tobacco in the presence of the children at any location and any enclosed areas such as homes or automobiles and to prevent the effect of secondary inhalation of tobacco smoke. The wife shall designate her bedroom as the only area where she will smoke or anyone else will smoke if the children are present in her home. The wife shall be permitted to smoke in the living area if the children are not present with the understanding that she will purchase, at her own expense, an air purifier which shall be a sufficient air purifier which shall be operated at all times when she is smoking in such area.
The consent order did not address child support. Mrs. Unger immediately filed a motion requesting child support. Mr. Unger filed a cross motion asking, in part, that Mrs. Unger be required to pay a portion of the mortgage on the marital home. Mrs. Unger filed an amended motion concerning summer visitation and various economic issues. Mr. Unger then filed an amended cross motion requesting that the court reopen the custody issue due to a serious lack of supervision by Mrs. Unger and substantial deficiencies in the quality of her supervision.
In his final pleading of August 23, 1993, Mr. Unger stated in pertinent part:
I have noticed that my son, C.W., who has a deep chesty cough everyday, is especially afflicted when he is with his mother, who smokes one and one-half packs of cigarettes per day, and that it decreases when he resides with me in a smoke free environment . . . Based on the risks to my son's health, I ask that my sons be provided with a totally smoke free environment.
Attached to the pleadings was a letter from Dr. Slade who had re-examined C.W. on August 19, 1993. In the letter, Dr. Slade stated that C.W. continued to report a productive cough when he was in his mother's home. The letter further stated that air cleaners do not eliminate ETS and tobacco smoke from one room inevitably contaminates the whole dwelling.
At the August 27, 1993 hearing on the motion, amended motion, cross motion and amended cross motion the court ordered a plenary hearing to determine the effect of ETS on the custody issue. The application to reopen custody by Mr. Unger was held pending the plenary hearing on ETS. Mrs. Unger applied to modify the consent order to remove restraints prohibiting smoking of tobacco in the presence of the children. Pending this plenary ...