Rebuttal to Comment by John Banzhaf Concerning Removing Children from Home of Parents Who Smoke

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Published on: May 26, 2016

Yesterday’s article, “Law Professor Encourages Coercion to take Children Away From Parents Who Smoke,” received an interesting comment from Mr. John Banzhaf, the law professor actually advocating for removal of children from the home of parents who smoke.


Since Mr. Banzhaf graciously took the time to respond to the article, Mr. Banzhaf deserves a rebuttal to his comment.  Normally, this is done in the comments section;  however, due to the length of the response, it will be addressed here in this rebuttal article.

While Mr. Banzhaf reiterated his points covered in the article and cited two different appellate courts to bolster his position, Mr. Banzhaf has not addressed where the authority comes from for the government via a court to direct the personal habits of citizens and punish citizens for it when it comes to the issue of smoking.  If parents’ smoking around children, exposing the child to secondhand smoke is child abuse, what is abortion?  God and government consider murder a criminal act that is to be punished.  In the Roe v. Wade case heard in 1973, the Supreme Court issued a decision applicable only to the litigants.  Court decisions are not law and failing to enforce a law does not make an action legal or lawful when legislation has not been enacted. How many babies have been murdered in the womb by women who have children, but are allowed to keep those children? Yet, those same women are not considered a danger to their other children or future children as a parent.

If your contention is abortion is lawful and legal, please show us all the law.  Granted, some States may have legislated it is lawful and legal for women to murder their unborn children.  However, those “laws” are in direct violation of the laws of Nature and of Nature’s God, not to mention the rights of all to life and only apply in those States.  Please, show us the federal law that legalizes the murder of babies in the womb affecting the entire nation.

Mr. Banzhaf failed to address any other scenario appearing in the article:  parent who allows the child to eat excessive junk food leading to obesity and health problems; viewing inappropriate material in magazines and on television;  failing to have their children engage in physical activity to prevent future health problems;  or, the practice of pedophilia amongst practitioners of Islam in this nation.   These would seem to be similar infractions that would constitute child abuse.  Are these not considered similar infractions, Mr. Banzhaf?  What is the difference is a judge sitting on the bench making a personal opinion and assessment while presiding over a custody case.

Just because this “movement of raising smoking in custody cases is active, growing and very successful since the 80s,” it does not mean it is by any stretch of the imagination lawful.  A perfect example is the Supreme Court interjecting itself to hear cases in order to affect social change by loosely interpreting or misinterpreting the Constitution to do it.  The cases in point here, for brevity, are prayer in schools and marriage between homosexuals and sodomites.  The Supreme Court interjected itself into hearing cases outside its established authority contained in the Constitution in order to insert their personal preference onto the whole of a nation.  The same thing is happening in the lower courts when appellate court judges only look at one side of the coin – the one they find more in line with their personal opinion – to render judgment against litigants or parties.

Usurpation of authority is unlawful, immoral, unethical, and in violation of our Constitution.    Perfect examples of this are the numerous unconstitutional agencies established to exercise more control over people, their property, their rights and liberties, and expand governmental power — BATF, EPA, Department of Education, Department of Agriculture, Homeland Security, etc.  No authority is provided in the Constitution under the enumerated powers of Congress to direct, regulate or rule over education, agriculture, the environment, movement of the people,  engage in unfettered surveillance of the people, ability of the people to keep and bear arms, etc.  Because the government has engaged and continues to engage in usurpation of authority does not make it acceptable or lawful.

Smoking is not illegal, unlike murder.  What an individual does with their own body is outside the purview of government and the court system.  That being said, parenting and raising children are also outside the purview of government and the court system.  To render a decision of child custody based on a judge’s personal opinion determining a parental action to be child abuse is an atrocity not based on law, but emotion.  These judges wanted to find a way to remove children from the home and used the reason of parental smoking, exposing the child to secondhand smoke, to do it.  What is worse is lawyers who are actually committed to engaging in coercion based on a New York Times article citing one study to do it.

Maybe, the citizens of this nation believe it to be child abuse to dress a child in a suggestive manner and parade the child down the street in a sodomite parade and having that child dance provocatively, as has been photographed and circulated over the internet.  Studies exist suggesting this type of activity described is harmful to children.  Even the American Academy of Pediatricians concluded from a study that supporting a child’s “transgender” fantasy is harmful.  Why are these situations not child abuse but a parent smoking around a child is?  What makes one abuse and the other not?  It is opinion, Mr. Banzhaf, by judges sitting on the bench to interject their personal beliefs onto the public or confirm a stance taken by government.

Based on this current AAP study on transgender children, are the courts then going to deny parental custody to parents who engage in encouraging their child’s fantasy?  Courts are quick to do it over smoking.  Would not mental harm be as damaging as physical harm?  Please explain the difference, Mr. Banzhaf.  Readers are all ears.

Moreover, if exposing children to secondhand smoke “producing toxins and carcinogen” is a valid reason to remove a child from the home, then, the courts must take into consideration parents living in crowded cities where carbon monoxide emissions and varied pollutants cause health problems or exacerbate health conditions, such as asthma.   By your logic, this scenario of parents not moving because of city “toxins and carcinogens” could be considered child abuse.

Where does it end Mr. Banzhaf, once that line of government exercising through opinion who should be allowed to care for their own children has been crossed?  The answer is it doesn’t.  It leads to children becoming the “property” of the State and government.

Mr. Banzhaf, did you review the dissertation by Levi and Marimont?  Did any judge review this dissertation?  More than likely not since it does not fit neatly into the “trend” to deny parental custody of a child because a parent smokes.   In other words, this is an assault on the rights of individuals who smoke and have children.  It is a parent’s responsibility to determine what is or is not harmful to their child, not the public, the government, the medical profession, or the court.  Suggestions can be made to parents based on studies;  however, all studies done cannot account for all variables.  Studies are used as guidelines for suggestions and recommendations, not to make law or base court decisions upon those studies particularly when it is outside the scope of authority of government.  As we all know, many studies are done to solidify a stance or position, especially when government funds such study, whether factual or not.

Funny, how many commercials one sees for lawsuits against pharmaceutical companies for drugs deemed “safe” by the Food and Drug Administration.  Studies presented to the federal government indicated these drugs were safe.  But, oops, those studies were skewed or the manufacturer withheld information in order to secure a profit.  Or, maybe, shyster lawyers wanted to ride the “cash cow” by suing these companies for side effects experienced by a minority of individuals.

However, that is quite a different scenario than one individual parent paying a lawyer to protect their rights from government to have that same lawyer engage in secret coercion to have the court remove their child from the home.

When presented with an alternative that could assist individuals with smoking cessation, should they so desire, the government turns around and decrees pseudo-law in the form of regulations to inhibit those alternatives, benefitting Big Tobacco and Big Pharma.  It’s an oxymoron to be sure.  Courts will take children away from parents who smoke;   but, government will destroy an industry helping many to cease smoking thereby pushing individuals back to smoking or even to not attempt quitting unless getting a “pharmaceutical” to help.  Even when a parent declares to cease smoking, the judge, in your own example, rendered, “A belated cessation of smoking might evidence a desire for custody of the child rather than concern for the welfare of the child.”  That does not sound like “justice” or fairness being rendered from the bench.  The judge has made a determination on an action without giving the individual an opportunity – an action rendered outside the scope of government and based on a judge’s personal opinion.

The bottom line here, as was stated in the article, boils down to government or courts removing children from parents just because of their smoking, which THEY consider to be child abuse.  It is about government finding additional reasons to make children wards of the State and infringing upon areas in the lives of citizens it has no authority to do so.  It matters not how long something has been active or how long a “movement” has been going.  Judges are not to interject their personal beliefs into cases — decisions are to be based on the law.  If judges are interjecting their personal beliefs into cases, based on anything other than the law, the judge should be removed.

Thank you for your comment Mr. Banzhaf.  Hopefully, we will hear from you in the future to address the aforementioned questions.

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