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Lizzio v. Jackson

Supreme Court of New York
226 A.D.2d 760 (1996)


Lizzio (plaintiff) and Jackson (defendant) were married and had two children. In 1988, the parties separated. Following their separation, the parties reached a joint custody agreement under which Jackson had primary physical custody and Lizzio had liberal visitation. In 1991, the parties were divorced, and the joint custody agreement was incorporated into the judgment. Three years later, Lizzio filed a petition requesting modification of the custody arrangement due to the fact that Jackson was smoking around the children. Lizzio was concerned about the secondhand smoke, because one of the sons had been suffering from asthma since 1986. Notably, smoking was not a new habit of Jackson's. Jackson had been smoking since before the parties divorced in 1991. Nevertheless, the family court found that custody should be modified. The family court granted Lizzio primary physical custody because of the health risks that smoking poses. Jackson appealed.

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