Mother fumes over smoking ban

A ruling by a judge in upstate New York in an apparently routine divorce case turned into a national debate yesterday about parental and individual rights.

Johnita deMatteo did the rounds of breakfast television shows to protest at a court order barring her from smoking in her home or car, because it might harm her 13-year-old son, Nicholas - even if he is not there. If she does not comply, she will lose access to him.

Legal experts believe that the ruling is unprecedented because Nicholas is not allergic to tobacco smoke, nor does he suffer from an illness such as asthma that might be aggravated by smoking. Even some anti-smoking campaigners seemed a little taken aback.

"As a parent I can't imagine having someone tell me I can't see my child," Susan Jenkins of Bridges, a local anti-substance abuse group, said. "On the other hand, second-hand tobacco smoke is more dangerous than we ever knew."

The ruling from a New York state supreme court judge, Robert Julian, came out of an acrimonious divorce case that began when Ms DeMatteo split with her husband, David, two years ago. Nicholas, who lives with his father, apparently complained to his legal guardian: "I don't like coming out of mom's apartment smelling like I've been at a beer joint."

Ms DeMatteo said Nicholas had never complained to her about the issue. "I feel this is a violation of my rights," she said. "I don't smoke when the child's in the house, and I don't smoke when he's in my car."

She told the judge that Nicholas had been put up to make the complaint. But Judge Julian said: "Motive is irrelevant if the behaviour complained of poses a significant risk of harm."

He also said Nicholas should be kept "to the extent practical" in a smoke-free environment outside the home. The two sides were arguing yesterday about whether this meant he could be taken shopping.

Ms DeMatteo's lawyer, Joan Shkane, said: "The father can request urine samples, air samples from her home and that's just another way he is intruding on her life. What they've done is turn Nicholas into a little informant."

The debate about the extent that the authorities could pry into Americans' homes came as the supreme court unanimously upheld a California ruling allowing public housing tenants to be evicted if drugs were used in their homes, even if they had no knowledge of what was happening.

The four unsuccessful plaintiffs were two elderly people whose grandchildren were caught smoking cannabis in a car park, one whose daughter was found with cocaine several streets away, and a disabled 75-year-old whose carer used cocaine.