I grew up with parents who smoked, not to mention lots of other people I was around. Didn't bother me, and I didn't have ear infections or any other problems.
Now if mom was smoking crack, then that would be a correct judgement. And I do think fathers get the shaft by family courts, but this ruling is bad.
Whats next? Kid goes with a parent who doesn't eat red meat, or doesn't go with the parent who hunts, or whatever.
Both of my parents smoked when I was a child, too, and I hated it. It didn't make me sick, but it did make me and my clothes stink. I generally support smokers' rights, even though I don't smoke, because I believe that property owners should be able to determine whether smoking is to be allowed on their property. The basis for this is that if you don't like smoke, stay away from the property of someone who allows it, be it their home or business. This logic doesn't apply to children, because they don't have the choice. The one saving grace is that little children don't know there is such thing as a smokeless room, if their parents are constantly smoking, as mine did. Once I figured out the outdoors was smoke-free, as well as most of my friends' homes, that's where I spent as much time as I could.
All of that said, I don't know that smoking should be a significant factor in custody determinations. Perhaps the fact that a parent knows that it is a factor, but insists on continuing to smoke, suggests less concern for the child than oneself.