In my work as a Collaborative Attorney and as a College Professor, we explore concerns of the family related to pets and divorce. I posted a video for my students in the Spring detailing a court battle over Dexter the Pug. I was so impressed by one student's thoughtful analysis on the issue that I thought I would feature her as a guest blogger. Enjoy!
My name is Carolann, and as “mother” to an Italian Greyhound, named Roni, I found this case to be particularly interesting. From my internet research, I found that custody cases for companion animals (primarily within the scope of divorce proceedings) have been considered by the courts in the following 16 states: New Jersey, Tennessee, Alaska, Florida, New Hampshire, Minnesota, Connecticut, Iowa, Delaware, Texas, Arkansas, Virginia, New York, Wisconsin, Pennsylvania, and California, where the “Bar Association of San Francisco recently hosted a panel concerning companion animal custody disputes which was reported by A.L.D.F to discuss ways in which pet owners might avoid future custodial issues and the challenges faced in these disputes which arise from the manner in which the current laws classify pets.“ (McClain, 2009) Currently, pets in all states are considered personal property by the courts, and therefore , are eligible to be divided between the disputing parties in accordance with traditional property division laws for a marital estate. It is only recently, that “some courts are beginning to recognize that one’s relationship with this particular form of property known as the family cat, dog, bird etc., is much different from one’s relationship with other forms of property such as your couch, your watch or your coffee pot.” (Animal Legal Defense Fund, 2012) Also worthy of consideration by today’s courts are pet custody disputes which arise within the realm of relationships outside of traditional male/female marriage which may result in joint ownership of a pet (e.g. same sex unions, common law couple relationships where no legal commitment is present, roommates, etc.) and how the dissolution of these types of relationship might impact future custody of the previously shared pet.
As I see it, the problem that exists with this type of consideration of ”companion animals as personal property” is that it disregards the emotional value that owners place upon their beloved family pets and it ignores the complex scenarios of joint pet ownership that arise out of non-traditional relationships. “The problem with pets as property is that most of us experience an emotional attachment to them that extends far beyond monetary value. “ (Junkins, 2011) In my opinion, while pets are in fact “purchased” and may be viewed as material property, the courts should also take the into account the intangible, non-financial benefits that they bring to their owner’s lives when looking to resolve custody issues, and not just their purchase price. Instead of being compared to a piece of furniture, which can be given to one of the parties and for which the other party can be financially compensated, perhaps, a companion animal might be considered in the same category as a treasured family heirloom which would represent financial worth and emotional value –a value to which a dollar amount could not be assigned. In this case, the courts might be willing to consider a shared custody arrangement between the 2 parties or minimally, a custody arrangement which would be in the best interest of the pet. Traditionally, in the case of divorce proceedings, family pets have been designated to live with the family member who will take custody of the children; however, in today’s culture where families are smaller, marriages are more fragile, and where no children may exist in a marriage, the family pet may have replaced the role of a “human offspring.” In this case, especially, companion animals play a much greater role in a couple’s union, and it could be argued that their “value” to each member of that union is definitely greater than the purchase price of the animal. How then should the courts be handling pet custody cases, when historically the “pets as property” model has been sufficient, in response to the changing needs of society? Should companion animal custody cases be handled more like child custody cases? Or, at least, should the emotional merits that a family pet brings to its owners be factored into the equation when courts are ruling on pet custody cases vs. rendering a decision strictly based upon monetary value alone? In other words, should the courts adopt a new outlook on pet custody hearings?
Unfortunately, many of the courts today are not willing to do this, due to the overwhelming number of unresolved child custody cases which currently exist within the court system, the lack of legal precedent for pet custody cases, and the fear of being inundated with future pet custody cases which could in fact clog the court system and create an even bigger backlog than what exists today. ” Courts have also cited enforcement as a potential topic of concern, asking which agency will be responsible for monitoring (and enforcing) the arrangements, or determining whether the companion animal’s best interest will be met.“ (McClain, 2009) To date, Pennsylvania is one of the states that has held fast to the “pets as property” viewpoint and has not been open to entertaining other positions. “The guiding precedent for pet custody in Pennsylvania is known as "the Barney rule." It arose from a 2002 case, DeSanctis v. Pritchard, in which a couple had agreed in their divorce settlement to share possession of Barney, their golden retriever-Labrador mix. When the ex-wife remarried and moved away, Anthony DeSanctis went to court to enforce the agreement, arguing that the dog should be treated similarly to a child. DeSanctis lost, with the judge ruling that the dog was property, so the agreement was 'analogous in law to a visitation schedule for a table or lamp.” (Kalson, 2006) While I don’t think that the Dexter Ruling” in New Jersey which resulted in shared custody for the jointly owned common law couple (Gallagher, 2009) will single handedly change the mindset of the Pennsylvania courts, I do believe that over time, as more pet custody cases arise and as people demonstrate an increased willingness to invest great amounts of time and money to resolve their pet custody disputes, the laws of each state, including Pennsylvania, will be forced to evolve in accordance with the changing climate of society. “In a country in which we are spending over $11 billion annually on health care for companion animals, lawyers are going to see more and more animal-related issues coming to them, from tort claims against veterinarians to landlord-tenant disputes to animal custody cases.”(Tischler, 2006) One lawyer at an Illinois law firm, Joyce O’Neill has even suggested that, instead of adding to the already overcrowded caseloads of the state courts, divorcing pet owners invoke a new form of Alternative Dispute Resolution (Miller, 2012, pg. 42) known asCollaborative Law to help settle pet custody issues. “Collaborative Law offers a non-adversarial approach to complex issues of divorce by assembling a team comprised of the parties, specially-trained attorneys, mental health professionals, and a financial advisor. The team works together to address all of the issues while prioritizing needs and goals, dealing effectively with emotions, and ultimately coming to a formal agreement that the parties are bound by.” (Craycraft, 2009) This forum for hearing and resolving pet custody disputes may provide an interim solution and even a permanent one for the increased number of pet custody disputes that are occurring in the United States. Either way, it is undeniable that the number of animal law cases, particularly as it relates to pet custody disputes is on the rise, and that these cases will present new and unique situations which will mandate a change in the current manner in which companion animals are viewed under the law. As Jonathan Rankin, a former attorney at the Boston Firm of Glickman Turley who recently left to start his own animal law firm, so aptly put it, “I am one that believes courts are always behind society. If corporations can be persons in the eyes of law, if ships can be persons in the eyes of the law, then the law should be able to figure out something for animals." (Bennett, 2007) I personally agree with Mr. Rankin’s perspective. Although adjustments to the ways in which animals are viewed in the Pennsylvania Court system may not happen overnight, the ever increasing emotional value that companion animals provide in relationships (especially non-traditional unions) will mandate a mind shift in the way pets are viewed by the courts, and will ultimately result in changes in the way pet custody disputes are resolved.
Works Cited:
Bennett, Drake. “Lawyer for the Dog.” Boston.com . The Boston Globe. (2007-2013.) Web. 11 March 2013. <<http://www.boston.com/news/globe/ideas/articles/2007/09/09/lawyer_for_the_dog/?page=full>>
Craycraft, Andrew. “Looking Out for Spot's Interests: A New Perspective on Custody.”Sotlaw.net. The Law Offices of Shriver, O’Neill and Thompson. 2009. Web. 12 March 2013. <<http://www.sotlaw.net/5.09.htm- shriver >>
Gallagher, Mary Pat. “Splitting Couple Awarded Joint Possession of Pet Pug.”Law.co. Law.com and ALMA website. (2009-2013).Web. 12 March 2013. <<http://www.law.com/jsp/article.jsp?id=1202434029986&Splitting_Couple_Awarded_Joint_Possession_of_Pet_Pug&slreturn=20130210173533>>
Junkins, Laurie. “Pets Are the New Kids: Fighting Your Ex for Custody.” Nakedlaw.avvo.com. NakedLaw by Avvo. (2011.) Web 10 March 2013. <<http://nakedlaw.avvo.com/divorce/pets-are-the-new-kids-fighting-your-ex-for-custody.html#ixzz2NAw8j9WI>>
Kalson, Sally. “In pet custody battles, courts treat animals as property: A legal tug of war. ”. Pittsburgh Post Gazzette. (1997-2013). Web. 11 March 2013.<>
McClain, Tabby T. “Knick-Knack, Paddy-Whack, Give the Dog a Home: Custody Determination of Companion Animals Upon Guardian Divorce.” AnimalLaw.info.Michigan State University College of Law-Animal Legal and Historic Center. ( 2009). Web. 10 Mar. 2013 <<http://www.animallaw.info/articles/dduspetcustodyindivorce.htm>>
Miller, Roger LeRoy. Fundamentals of Business Law. Mason: Cengage Learning, 2012. Print.
Tischler, Joyce and Bruce Wagner. “Lawyers Must Plan for More Pet Custody Cases. “ALDF.org. Animal Legal Defense Fund. (2012). Web. 10 March 2013 <<http://aldf.org/article.php?id=308>>
“What to do if you are involved in a custody battle over your companion animal? Pet Custody-Fighting Over Fido.” ALDF.org. Animal Legal Defense Fund. (2012). Web. 10 March 2013. <<http://aldf.org/article.php?id=239>>
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