TAKE THE HOUSE BUT THE DOG IS MINE:
ANECDOTAL ‘TAILS’ ABOUT PET CUSTODY ISSUES IN DIVORCE
Pets have been considered as property under traditional legal rules, like a lamp or a couch.
Courts throughout the country utilize the “property” designation in a myriad of contexts, applying the term both to tangible and intangible interests: Trademarks, Corporations, Trusts, Patents, and Copyrights. See ALDF Amicus Curiae Brief Regarding Custody of Rafiki, www.divorce360.com.
- Animals have always been considered a Sui Generis Type of Property, Accorded a Myriad of Protections:
1.Animal Cruelty Statutes
2.All 50 states and the District of Columbia have enacted animal cruelty laws, penalizing the mistreatment of animals.
3.Twenty five states treat some animal cruelty as a felony, abandonment of an animal is a crime in eighteen.
Individuals in nine states convicted of animal cruelty must forfeit custody of their animals. - Federal Animal Protection Laws
1. The Animal Welfare Act mandates that standards for humane handling, care, treatment, and transportation of animals.
2. The AWA also mandates procedures to ensure that animal pain and distress are minimized (in experimental procedures)
Courts are beginning to reject a strict property analysis in custody of animal cases, and makes its decisions based on the unique qualities of people and animal relationships. There is not only a legislative and societal respect for the value of animal life, but also a recognition that animals have interests of their own that should be protected. The courts are in agreement. Numerous states have held that companion animals possess unique traits that must be considered when evaluating damages for their injuries.
The traditional restriction in personal property cases that the cost of repair should not exceed the market…value of the property should not be applied in a case where…a living creature is involved”. Zager v. Dimilia, 524 N.Y.S. 2d 968, (1978). Courts deciding custody issues are increasingly finding the interests of animals must be considered. Courts in New York, Maryland, and Texas have ordered shared custody or visitation of animal companions, based solely or at least partly on the interests of the animals at issues. Raymond v. Lachmann, 695 N.Y.S.2d 308 (1999); Assal v. Kidwell, Civil No. 164421 (Md. Cir.Ct., Montgomery Cty. Dec. 3, 1999); Arrington v. Arrington, 613 S.W.2d 565 (Tex App. 1981).
One shortcoming of the law is that it has not modernized to distinguish pets from farm animals. When animals were part of the means of production, perhaps it made some legal sense to treat them the same as factory equipment. However, the time is long past when the law should recognize that we are no longer an agrarian society and that tractors and similar equipment have, in fact, heavily replaced animals as a means of farm production or family income. See, Bones of Contention, p. 18).
Ten years ago, a claim asserting a quasi-parental right to shared custody of the family dog would have been laughed out of court. In the 1993 case Bennett v. Bennett, the divorcing couple agreed to the stipulations of a Florida district court’s judgment of dissolution in all areas except one: possession of the dog, “Roddy.”
[1] Following a hearing in which the husband asserted his claim to the dog as a “premarital asset,” the trial judge granted possession of Roddy to Mr. Bennett.[2] However, sympathetic to the wife, the court also granted visitation rights to Ms. Bennett every other weekend and every other Christmas.[3] Both parties filed a series of motions contesting the court’s decision.[4]
On appeal, the court reversed the decision-holding that Roddy was personal property subject to state’s equitable distribution statute.[5] Even though the appellate court recognized that “a dog may be considered by many to be a member of the family,” it firmly held there was “no authority which provides for a trial court to grant custody or visitation pertaining to personal property.”[6] The appellate court went on to state:
While several states have given family pets special status within dissolution proceedings, we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the proceedings in the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.
The court’s decision in this case may seem callous in light of the parties’ emotional connection to Roddy. However, in this case, the law could not abide the trial court’s ruling. As the appellate court concluded, “[w]hile the trial judge was endeavoring to reach a fair solution under difficult circumstances, we must reverse [and remand] pursuant to the dictates of the equitable distribution statute.”[7] Courts in other jurisdictions have adopted an attitude similar to the Florida Court of Appeals in Bennett—that unequipped laws and overstrained divorce court dockets simply cannot accommodate complex, drawn-out pet custody litigation.[8]
Fighting Like Cats and Dogs: The Rising Number of Custody Battles Over the Family Pet, 10 Journal of Law & Family Studies 433, (2008) T. Christopher Wharton.
Courts are increasingly open to considering the best interests of the animal in deciding which party will be awarded custody. Even though many states explicitly prohibit consideration of fault in dividing a couple’s property, certainly a court would take into account cruelty to the family pet in determining its placement. The literature documents the relationship between abuse of animals and domestic violence (making any such behavior critically important in determining child custody) as well as other violence toward humans. See, Bones of Contention, p. 12)
“The whole reason the animal is in the home is because there’s a relationship. It’s not just that we care about them–they care about us. That’s what needs to be taken into consideration in these cases. (See, Bones of Contention, p. 18)
- Cases dealing with pet issues
- In the 1944 case of Akers v. Sellers, a recently divorced couple battled over the custody of their Boston Bull Terrier, arguing the case up to the Appellate Court of Indiana. In a surprisingly progressive and considerate opinion, the Chief Judge vowed to approach the case with “full realization that no man can be censured for the prosecution of his rights to the full limit of the law when such rights involve the comfort derived from the companionship of man’s best friend.” See Fighting Like Cats and Dogs, By T. Christopher Wharton.
- More recent cases, however, suggest the changing status of pets as more than just man’s best friend.[9] Another landmark decision came in the 1981 case Arrington v. Arrington, where a Texas appeals court reviewed a custody decision involving “Bonnie Lou,” a “very fortunate little dog with two humans to shower upon her attentions and genuine love frequently not received by human children from their divorced parents.” The case is particularly noteworthy for upholding Mrs. Arrington’s designation as the “managing conservator” with “reasonable visitation” rights granted to her husband—an arrangement traditionally reserved for children. Nevertheless, within the context of more modern pet custody cases, the distinction between pets and children is increasingly blurry.
- DeSanctis and Pritchard, No. 2990 EA 2001, 2002 Pennsylvania Sup. Ct., July 5, 2002. Parties had a settlement agreement including shared possession of the family pet. Husband assumed more than his share of the marital debt, in exchange for this shared possession of the family pet. Later, wife refuses to comply with the agreement, Husband petitions the court to enforce the Agreement. Court. The trial court and all higher courts refused to recognize that parties can create a shared property interest in a pet; describing Husband’s Complaint as “seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp.”
- In Raymond v. Lachman, plaintiff and defendant had been roommates and plaintiff’s cat had lived with them. The two separated and defendant felt the cat belonged with him. Plaintiff sought relief to obtain permanent custody of his “property”. The trial court first recognized the interests of the cat as a sentient, companion animal by ordering the parties to “work out a visitation schedule” because “it does not appear to be within the best interest of the cat to shift custody back and forth.” Id. The court then reversed itself, however, and awarded the cat to plaintiff under a straight property analysis. Id. (Jan. 8, 1998). On appeal, that ruling was reversed. The appellate court based its decision on (1) the interests of the cat as a feeling individual who had “lived, prospered, loved and been loved” in the residence now occupied by the defendant alone and (2) “the cherished status accorded to pets in our society.” Raymond v. Lachmann, 695 N.Y.S. 2d 308, 309 (1999). (See ALDF Brief 1)
- In Zovko v. Gregory, No. CH 97-544 (Arlington County (Va.) Circuit Court, Oct. 17, 1997), Grady, a cat originally belonging to defendant Gregory, was cared for by Zovko while the two men were roommates. See Brooke A. Masters, In Courtroom Tug of War Over Custody, Roommate Wins the Kitty, WASHINGTON POST, Sept. 13, 1997, at B1. When the roommates separated and a custody dispute over Grady reached the courthouse, the court found “Grady’s happiness took priority. . . . [Judge] Kendrick said he would decide ‘what is in the best interest of Grady . . . From what I have seen, Grady would be better off with Mr. Zovko.’” Id. (See ALDF Brief 1)
- Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. 1994) focused on the calculation of damages for the shooting of a cherished family dog. In that evaluation, the emotive qualities of dogs was addressed. “Scientific research has provided a wealth of understanding to us that we cannot rightly ignore. We now know that mammals share with us a great many emotive and cognitive characteristics” — characteristics which necessarily distinguish companion animals from chattels having no discernible interest of their own. Id. at 378 (Andell, J., concurring). Judge Andell continued:
The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society’s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live. (See ALDF Brief 1)
- The probate court of Chittenden County, Vermont set aside a provision in a will directing the executor to destroy any animals owned by the decedent at the time of his death. Estate of Howard H. Brand, No. 28473 (Probate Ct., Chittenden County, Vt., Mar. 17, 1999). The court observed that other states repeatedly had found such a strict chattel treatment of decedents’ companion animals to violate public policy. The court recognized the similar approaches taken in animal cases outside the realm of probate law and found that “[c]ourts in other jurisdictions have also recognized the distinction between companion animals and other forms of personal property in landlord tenant cases, tort actions, and even divorce decrees. . . .” Id. at 4. (See ALDF Brief 1)
- Akers v. Sellers. 114 Ind.App.660, 54 N.E.2d 779 (1944) contains many of the problems in placing a dog. The “true value” of the dog to the parties was not used, but instead was set arbitrarily at $25. The court raised the question of the propriety of using court resources to determine the issue of the dog’s residence, but concluded that because dogs give great comfort by their companionship, the court would address the problem “without any feeling of injured dignity.” When the couple separated, the dog was left behind, so the wife just “naturally came into custody of the dog.” The court chose to avoid the question as to “whether the interests and desires of the dog” should govern the decision or the “brutal and unfeeling basis of legal title.” Apparently based on the husband’s leaving the dog with the wife, the court found that he had given the dog to the wife and that “no reason was shown why possessionshould not accompany ownership.”66 Thus the appellate court declined to disturb the lower court’s award of the dog to the wife. http://law.bepress.com/expresso/eps/94, p. 6
- In an odd twist on the scenarios usually involved, one couple foughtbecause each wanted the other to have the exotic bird with its expensive upkeep. The husband indicated that if he got the bird, it would have a short life expectancy. The judge said either the wife could keep the bird or the husband could give it away. 81 The wife kept it. See Footnote 39, Bones of Contention.
Next newsletter will continue with: C. Some considerations for the custody of pets and D. Proposed legislation for current law to address the placement of pets in actions affecting the family.
[1] See Separation, Custody and Estate Planning Issues Related to Companion Animals, 74 Univ.Colo.Law Review 181 2003, by Prof. Rebecca J. Huss.
[2] . See www.animallaw.com
[3] .See, Expanding Domestic Violence Protective Orders to Include Companion Animals, by Phil Arkow, www.abanet.org
[4] .See The Marriage of Family Law & Animals Rights, by Tony Bogdanoski.
[5] See, Anthony DeSanctis v. Lynda Hurley DePritchard, Pennsylvania Supreme Court, 2002. Question presented: Did not the Superior Court improperly disregard the parties’ right to share a property interest in the pet and thereby violate public policy recognizing the unique character of pets?
[6] See, Lawyer for the dog, Inside the booming field of animal law, in which animals have their own interests—and their own lawyers. www.boston.com/news/globe/ideas/articles/2007/09/09
7. See, divorce360.com/divorce-articles ALDF Brief 1 Regarding Custody of Rafiki
1. Some considerations for the custody of pets:
2. Pet support is best negotiated in an out of court settlement, since courts will view pets as property on the issue of ordering support.
1. Talk with your spouse and try to work out an amicable settlement.
2. Calling contest (See Fighting Like Cats and Dogs, p. 438)- Not favored
3. Expert advice from animal behaviorists, pet care professionals, and the local veterinarian. Experts have to conduct a proper evaluation with the pet and its owners. (See, Fighting Like Cats and Dogs, p. 437)
I) The 2000 “Perkins Case” is perhaps the most infamous pet custody dispute. In this case, an affluent San Diego couple launched an all-out war over the custody of “Gigi,” a little dog who reportedly took up half of the Perkins’ three-day divorce trial. Throughout the course of the litigation, Ms. Perkins allegedly invested some $146,000 in the case to finance, among other things, a “canine bonding” study conducted by a professional animal behaviorist and a video about the dog titled “A Day in the Life [of Gigi].” See, Fighting Like Cats and Dogs, p. 439).
4. If the pet belonged to one person prior to the marriage, the court is more likely to award the animal to that person.
5. The animal(s) follow the children.
6. You have been the animal(s) principal caretaker and will have the time to properly continue taking care of the animal(s).
7. Which party lives closer to the vet
8. Which party has the biggest yard
9. Friend’s testimony as to which owner loves the pet more.
10. Dissipation
11. Where the dog had lived all his life (See Bones of Contention: Custody of Family Pets, 2003 bepress Legal Series 12. Paper 94, p. 4, Ann H. Britton Widener
12. Which party paid for the vet and food
13. Who initially picked up the pet from the rescue shelter or kennel
14. Interview the pet as to the pet’s desires, etc. (See, Bones of Contention, fn97)
15. Point System (Bones of Contention, p. 18)
When courts must determine the fate of pets, they could use a point system that partakes of both the property and non-property considerations. One point could be awarded for each property-like characteristic of the animal: who initially purchased it? paid for its food and medical bills? One point could be awarded for each child-like characteristic: who took primary responsibility for giving the animal exercise? ensuring health (by trips to the veterinarian, monthly flea and worm medication)? cleanliness (cleaning up after a sick animal, cleaning the cage or litter box)?
I mean the term primary responsibility to be distinguished from the doing. Any family
member may perform the tasks, even the children; the question is who made sure it was actually done by someone. For example, an older child may have taken responsibility to keep the litter box clean with only rare reminders. In that case, the child would receive the point. As another example, one of the adults may perform the task, but only when the other adult pays attention enough to know it needs doing, i.e., the adult who actually does it may be doing it only by delegation and not because s/he actually shoulders the responsibility for it. Other considerations for awarding points would be future living arrangements. The party with living arrangements most suitable for the animal would receive a point. Does one person travel a lot, or does one have a large yard?235 Children automatically receive a point based on research that shows children with pet dogs–and, presumably, other pets–“adjust better to their parents’ divorce than children without dogs.”
Example of how it would work Willard and Patience have two children, Henrietta and Orville. They have a cat, Alice. Willard owned the cat prior to the marriage. After they were married, Patience took the cat to the veterinarian annually. Henrietta fed and groomed the cat and cleaned the litter box as one of her household chores. Orville played with the cat every day, and he is the one who gave Alice the flea medication every month. If Willard and Patience divorce and are unable to settle on the disposition of the pets, the points would be awarded thus:
Willard Patience Henrietta Orville
Prior owner Annual care
(times 6 years)
Daily care ( x 6 years)
Cleanliness (x 6 years)
Child point
Exercise (x 6 years)
Monthly care (x 6 years)
Child point
Total = 1 Total = 6 Total = 13 Total = 13
If the children are placed with Patience, they have a total of twenty-seven points to Williard’s one. Of course, this does not exhaust the items for which points could be awarded. Other sources of points could be the extent to which the person demonstrated emotional involvement with the pet, such as taking it to obedience school, and a practice of giving gifts at holidays. In sum, public sentiment and conflicting law require that courts modernize their approach to pets when they assist couples in resolving disputes over pet ownership. The point system avoids the complications of equating pets with children but provides an alternative to maintaining the fiction that pets are the equivalent of household goods.
The Family Law Council of the Illinois State Bar Association is considering parallel legislation to Wisconsin’s Pet Placement Legislation now in effect. Below is the language of the Wisconsin legislation:
Analysis by the Legislative Reference Bureau of Pet Legislation Assembly Bill 436 when Proposed in Wisconsin:
Current law does not address the placement of pets in actions affecting the family. This bill provides that, in an annulment, divorce, or legal separation action, the petition filed in the action must include information about pets of the parties and whether they have entered into a written agreement as to placement. In the action, a party may file a motion to have the court determine the placement of a pet. The bill requires a court to order placement of a pet in conformity with any written stipulation that the parties file and prohibits the court from ordering shared placement if the parties do not stipulate to it. If the parties are unable to stipulate to the placement of a pet, the court may order placement with one of the parties or may order the parties to surrender the pet to a local humane society and to provide evidence that it has been done. If the court has ordered shared placement of a pet and one of the parties moves to a location that would make it impractical to continue the shared placement, the court modify the placement arrangement in conformity with a stipulation of the parties. If the parties are unable to stipulate, the court may order placement with one of the parties or may order the parties to surrender the pet to a local humane society and to provide evidence that it has been done. The bill prohibits a court from ordering placement of a pet with a party who has been subject to a domestic abuse temporary restraining order or injunction. The requirements also apply for temporary orders during the pendency of the action.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
CHAPTER 767, Subchapter V, Pet Custody, Placement and Visitation
SECTION 5. 767.49 of the statutes is created to read:
767.49 Placement of pets. (1) MOTION AND STIPULATION FOR PLACEMENT. In an annulment, divorce, or legal separation action, a party may file a motion for a determination of the placement of a pet of the parties. The court may not order that the parties share placement of a pet unless the parties have filed a written stipulation with the court that provides for shared placement. Except as provided in sub. (4) (a), the court shall order placement of the pet in conformity with any written stipulation of the parties.
(2) PLACEMENT OF PET IF NO STIPULATION. If a party to an annulment, divorce, or legal separation action requests the court to determine placement of a pet of the parties and the parties are unable to stipulate as to the pet’s placement or sub. (4)(a) applies, the court may order placement with one of the parties or may order that the pet be surrendered to a local humane society or other similar animal care facility designated by the court. If the court orders that the pet be surrendered, the court shall require that the parties submit evidence to the court that the pet has been so surrendered.
(3) IF A PARTY MOVES. If the court has ordered shared placement of a pet under sub. (1) and one of the parties moves, or intends to move, to a location that would make it impractical for the current placement arrangement to continue, a party may file a motion for modification of the placement order. Except as provided in sub. (4)(a), the court shall modify the placement order in conformity with any written stipulation of the parties. If the parties are unable to stipulate to a modified placement arrangement or sub. (4) (a) applies, the court may order placement with one of the parties or may order that the pet be surrendered to a local humane society or other similar animal care facility designated by the court. If the court orders that the pet be surrendered, the court shall require that the parties submit evidence to the court that the pet has been so surrendered.
(4) GENERAL PROVISIONS. (a) The court may not order placement of a pet of the parties with a party who has been subject to a temporary restraining order or
injunction under s. 813.12 or 813.122. (b) A stipulation under this section may be amended by the parties in writing.
SECTION 6.0Initial applicability.
(1) This act first applies to annulment, divorce, or legal separation actions that are commenced on the effective date of this subsection.
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