Should Smoking Keep A Mom From Her Son?

This is a partial transcript from On the Record with Greta Van Susteren, March 26, 2002. Click here to order the entire transcript of the show.

GRETA VAN SUSTEREN, HOST: OK, it's one thing for parents to tell their kids not to smoke, but do kids have the right to tell parents to butt out? In New York, a judge ordered a mother not to smoke at home or in the car after her 13-year-old son complained. The teen told the judge he couldn't stand visiting his mom because of the smoke. The mother accused her ex-husband of initiating the complaint. The judge says, either way, the smoke still poses a health risk to the child.

Joining us from Philadelphia, family law attorney Lynne Gold-Bikin. From Los Angeles, Fox News legal analyst and USC law professor Susan Estrich. And in New York, celebrity divorce attorney Raoul Felder.

Raoul, first to you, since you are the celebrity divorce lawyer in New York. What do you make of this case, a judge telling a mother "You can't smoke at home"?

RAOUL FELDER, DIVORCE ATTORNEY: Well, Greta, it's -- it's social engineering by judicial fiat. Now, there are lots of cases where custody was twisted around because of smoking, but those were cases where kids had problems, had asthma or something like this. This judge just doesn't like smoking. He suddenly decided he's Dr. Pasteur, and he says, "If you go near any place where there's smoking, in a car, in the house, even though the kid is not there, if he shows up and you were smoking there, no go. You don't see the child."

It's sort of ridiculous. You know, if you live next to these power lines, they have magnetic electric force. If you have a cell phone -- the place to really get sick is to go to the hospital! Most diseases come to people who go to hospitals.

VAN SUSTEREN: And we'll reserve that segment for another night about hospitals, Raoul.

Susan, your reaction to this judge's decision.

SUSAN ESTRICH, USC LAW PROFESSOR: Well, I think Raoul's right that it goes too far. I'm a little more sympathetic. I remember when I was 13, I was desperate to get my father to stop smoking. And I think that's really what's going on here. This kid wanted his mother to stop smoking. He's quoted as saying he's very happy with the decision. "I hope it gives Mom the message that I care about her and want her to stop smoking. It's not healthy for her."

My problem, Greta, is I understand this teen's complaint, but why are we giving judges the authority to intervene in this way? He's not protecting this kid's health. It might be in the mother's long-term best interest. It might be in the kid's long-term best interest...

VAN SUSTEREN: But -- but...

ESTRICH: ... but this is not for a court to do.

VAN SUSTEREN: Lynne, the issue in New York state isn't the best interests of the mother, whether or not she should be smoking cigarettes or not. And Susan paints a somewhat sympathetic picture, wanting to get a parent to stop smoking. But having said that, do you agree with this decision?

LYNNE GOLD-BIKIN, FAMILY LAW ATTORNEY: You know, I give some credit to the judge for listening to the child because this is supposed to be about the best interests of children. And this kid is obviously giving some kind of signals. He's uncomfortable at Mother's house for a reason. Now, if Dad put him up to it, then, obviously, Dad and the son are going to end up together.

But it sounds to me like this is a contested custody case, and this child is giving signals to the judge that he wants some changes at Mom's house. And maybe he wants control. Maybe he wants the ability to be able to say, "If Mom doesn't do what I want to do, I'm going to go over to Dad's." But I think there's more to the judge's thinking than just the cigarettes.


GOLD-BIKIN: I mean, we're focusing on that, but there's more to it.

VAN SUSTEREN: Susan, how do we -- how do we determine whether or not this is a young -- or this is a teenage boy who's genuinely interested in his mother, or whether this is an ex-husband putting the son up to it? I mean, look, I mean...

ESTRICH: Well, we all know...

VAN SUSTEREN: ... let's face it, divorces are ugly.

ESTRICH: Oh, really ugly! We can ask Raoul about his most recent celebrity client and why it is that Mayor Giuliani had to be told, what was it, by a court that his girlfriend couldn't sleep over?  I assume that was probably his ex-wife. In most of these cases, you've got a complex matter of an ex-spouse putting somebody up to it. In this case, the kid has his own lawyer who's in there arguing.

But the bottom line, Greta, is wherever this came from, the judge's obligation, it seems to me, is to protect this child's health. And if the mother was smoking with the child there, if he had an allergy or an illness, even if he didn't and it was secondhand smoke, I'd give it to the judge.

But this is a case where the kid, by his own admission, says he hates the smell of cigarettes. Well, I'm sympathetic. So do I. But why should a court get involved in that?

VAN SUSTEREN: Well, and here's the other issue. If it's not a health problem to the child -- I mean, the judge did say that he thought secondhand smoke was a health issue, but it isn't a situation where the child has an allergy. If it's best interests of the child, is it enough that the child says, "I love my mother, I don't want her to smoke"? Is that really best interest?

FELDER: Well, you know, given the worst sort of scenario, that the kid was put up to it and it's -- or the -- he believed it, whatever -- courts are not supposed to micromanage people's lives. Susan was right on target. I mean, it's just not the province of the courts to tell people when to smoke, when not to smoke, or...

VAN SUSTEREN: But Raoul, don't -- I mean, in divorce cases...

FELDER: ... to eat, (UNINTELLIGIBLE) vitamins.

VAN SUSTEREN: But Raoul, in divorce cases, isn't it -- isn't it the truth that judges get into the worst predicaments? They've got both sides fighting like cats and dogs. The lies are flying. And the judge is trying to figure out some sort of solution to the worst case.

FELDER: Yeah, but Greta, the judge deals with things that are the province of the law. Whether somebody smokes when a kid isn't there is not the province of the law. Whether the mother takes vitamins so she'll live longer or be a mother for another 30 years, that's not the province of the law.

VAN SUSTEREN: But what if the child -- what if the child says, "Look, the smoke sits in the environment. I can't stand that secondhand smoke. As long as she's going to smoke cigarettes, even if I'm not there, is a health hazard." Is that enough?

FELDER: You know, Greta, the kid is going to through life and be in lots of places he doesn't like the smell of alcohol, doesn't like secondhand smoke. You got to live with it. You can't run to a judge and say "Manage people's lives" because of this.

VAN SUSTEREN: Lynne, you agree or disagree?

GOLD-BIKIN: No, I disagree. Judges manage people's lives all the time. That's what custody cases...

FELDER: On legal issues!

GOLD-BIKIN: Excuse me!


GOLD-BIKIN: That's what custody cases are all about. I try these cases every day of my life, and what happens is, this one says this, that one says that. The judge has to make decisions. I'll bet you there's more in that decision than just the smoking.

The fact is, this is a child who wants to be in control of part of his life, and he's old enough to be in control of part of his life. And one of the things he's saying is, " I don't want my mother to smoke." I mean, listen, I see people driving down the street with their kids in the car and the windows up and smoking, and I want to go smash the window and grab that kid out!

VAN SUSTEREN: And in that case...


VAN SUSTEREN: And Lynn, you'll need a criminal defense attorney. But let me give the last 20 seconds to Susan. Go ahead.

ESTRICH:  I just wanted to say, Lynne, I feel the same way, but I don't go up to a judge in superior court and say, "Let's go arrest that mother." And there's a lot of things...

GOLD-BIKIN: We're not arresting her, we're just saying...

ESTRICH: ... people do...

GOLD-BIKIN: ... "Don't smoke when the kid is there."

ESTRICH: Well, but you're getting a court. And Raoul's right. It's one thing for a court to resolve custody issues. It's one thing for a court to resolve monetary issues. But to go in and say, "I want you to cook a better lunch, and I want you to not take vitamins, and I want you to smoke" -- I mean, at a certain point, this kid should have said it to his mother.

VAN SUSTEREN: All right...

GOLD-BIKIN: He probably did.


VAN SUSTEREN: All right. Lynne Gold-Bikin, Susan Estrich, Raoul Felder, thank you all very much for joining me tonight.

For those of you at home who want to weigh in on this case, send us your emails. Send them to We want you to be the judge.

Click here to order the entire transcript of the March 26 edition of On the Record.

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