If you supposed custody would be awarded to the individual who fed, walked, groomed, took to the veterinarian, and got up at 6:30 A.M. to let out, you’d be correct, to a point.
A deep divide separates the attitude of most families, who view pets as family members, from the law, which regards pets as chattels, not different in kind from household property such as a sofa or coffee cup. For years courts have successfully straddled this divide; however, the influx of pet ownership has shifted the issue of pet custody to the forefront.
Custody determinations arise in several situations, for example, a pet may be removed by local officials due to abuse or neglect; removal for maltreatment is usually challenged on evidentiary grounds such as disclaimed responsibility for the animal or justification for the animal’s condition. An original owner may seek to reclaim a pet given to the care of others in the owner’s absence; whether the transfer was intended or properly understood to be temporary is generally a question of fact. Situations exist, however, where the determination of custody is more difficult, such as when an owner dies or when a relationship dissolves.
This short review excerpts an article written by Britton, Bones of Contention: Custody of Pets, Journal of the American Academy of Matrimonial Lawyers, Vol. 20, Number 1, 2006, p.1, and addresses determination of pet custody after dissolution of a relationship. As may be expected, there are conflicts analogous to child custody cases: physical placement, visitation, and financial support (which has come to be called petimony) are all at issue. The law’s view of animals is internally inconsistent, in that it does not always treat them as objects, or simply as property.
The truth is the overwhelming sentiment of pet owners is that pets are more than “mere property.” A Gallup Poll showed most pet owners wouldn’t trade their pet for $1 million in cash. The majority see their pets as members of their family rather than property, “even referring to themselves as the pet’s `mom’ or `dad.'” Terminology commonly used by humane organizations reinforces the similarity between pets and children. One adopts an animal from a shelter; the adopted pet is described as being with a “foster family.”
Unlike child-custody battles, once the family pet lands in a court, the outcome is seldom based on the best interests of the animal – or even the owner. The party who can prove the strongest ownership rights, . . . by showing proof of receipt of purchase and veterinary care, can build a strong case for keeping the animal, whether that person has suitable housing for the animal or not.
The method of asset division upon divorce is generally based on either community property or modified common law property, depending on the jurisdiction. Property owned prior to the marriage is excluded from that division. Therefore, a spouse who owned a pet prior to the marriage will retain that pet upon dissolution of the marriage. Pets acquired during the relationship, however, will most likely be awarded to the individual who can prove ownership, ownership typically based upon financial principles. For example, payment of veterinary and grooming bills often determine ownership. While a prenuptial contract may address custody of the pet, such clauses may prove to be unenforceable.
Pet custody cases that are brought before a court are further burdened by the emotional issues inherent in family law cases; judges who decide wrenching child custody and support matters may be unwilling to use court resources to determine the custody of pets, that is just not a justiciable issue . . . . Go out and buy another dog. . . . don’t take up a judge’s time when there are children to be cared for and support to be enforced, don’t ever bring a stupid issue like that before me.
Despite the general hostility from courts and general lack of reported family law cases as described above, officially reported cases do exist. Without comment, the court awarded “some poodle dogs” along with other property to a spouse in Riley v. Riley.
In Bennett v. Bennett the ex-wife sought a change in custody of the dog because her former husband was not complying with the trial court’s order of visitation. The court not only declined to change custody but remanded the case to place the dog as property.
Dogs involved in divorce cases are luckier than children in divorce cases – they do not have to be treated as humans. The office of `managing conservator’ was created for the benefit of human children, not canine. A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property.
Making up for the shortage of officially reported cases, media reported cases are numerous, if often sketchy, in their details. Some of the more notable are discussed here. Perhaps the custody issue has long been dealt with, but without publicity or public comment. Media reports of the custody problem abound, but virtually all date from the 1990s or later.
Movie stars Gwyneth Paltrow and Brad Pitt, although never married, reportedly battled over custody of their dogs after they split up. Drew Barrymore and husband Tom Green agreed to share custody of one of their dogs, but had not reached agreement as to the other two at the time they announced their plans to divorce. A Buffalo, New York, couple “endured nine months of legal wrangling” over a 14-year-old dog; another reached a mediated agreement after three months of fighting over a collie. T. Boone Pickens battled his wife Beatrice in a Dallas, Texas, divorce court so bitterly that “a judge had to order custody arrangements for their dog Winston; [Mr. Pickens] gets Winston the third weekend of every month.”
In an otherwise “very amicable” divorce of a four-year marriage in which the parties continued working together at the husband’s photography business, a 14-1/2 year-old Shihtzu was a stumbling block. The wife had owned the dog prior to the marriage, but both agreed that each of them was very attached to the dog. They worked out their shared custody without a separate legal document: the dog is with the former husband during the week and with the former wife on weekends.
“In Milwaukee, a woman said she’d go to jail rather than surrender her cat.” A Louisville, Kentucky, woman did spend her nights in jail for thirty days for refusing to give her ex husband custody of two cats as a judge had ordered. She said her husband travels a lot and had an anger control problem that made her uncomfortable about his having the cats. She was held in contempt for hiding the cats and telling her husband they had run away. Her ex-husband hired a private detective who found where she had hidden them. The woman had already been awarded the couple’s three dogs.
An Ohio attorney recalls a case in which the couple agreed to share custody of the children but could not reach agreement as to the dog. Eventually, the couple agreed to share custody of the dog as well; the dog would travel with the children. Although an Alaska couple had reached a settlement that each would take one of the dogs, the wife’s concern that the dogs would be too lonely without each other ground the case to a halt.
“Once in a while, lawyers say, the fighting gets so bad that the warring parties agree to share custody of the dog. But rarely . . . does the squabbling continue to the point where a circuit court judge is asked to enforce a dog custody and visitation order. ” Two years after their divorce, the former wife came back into court complaining that the dog was not properly supervised when in the husband’s care. The husband countered that he always “happily” paid the veterinary bills when the dog got injured and opined that the wife’s ulterior motive was to prevent his having the dog for his upcoming marriage, in which the dog was to walk down the aisle with the flower girls. The husband won.
An Orange County, California, Superior Court threatened to put a Rottweiler named Guinness up for auction if the ex- boyfriend and girlfriend did not reach an agreement within thirty minutes. The judge rejected evidence of who paid for the dog food and veterinary bills, who initially picked up the dog from the rescue shelter, and a proffered courtroom display of the dog’s affection for the boyfriend.
An unusual case involved a twenty-three year old daughter suing her parents for custody of the dog, a Rottweiler whose name, Hund von Hohle (that translates as Hound from Hell). Suzanne Ochs left the dog with her parents when she moved out. Her parents then refused to relinquish the dog to her, claiming that they had been the primary caretakers for over six years while the daughter traveled frequently in pursuit of other interests.
Despite the usual rule of separate property, the wife of a three-year marriage won custody of the dog that had been given to the husband by his previous girlfriend eight years earlier. However, the prior girlfriend and (now ex-)wife had been friends so the wife had known the dog all of its life. The wife successfully argued that she was the best caregiver for the chocolate Labrador retriever who had a heart condition.
A Tennessee lawyer recalls handling a case on the custody of two beagles. “We wound up having a separate hearing on the custody of the dogs which was very volatile.” The issue is not entirely new to the law. A Tennessee judge reports that early in his career he heard a case between two elderly people: “They had settled everything-every dish, fork and plate-except that they had an old dog.” The judge ruled, much as one would for a child, that the dog should stay in the house and neighborhood where he had lived all his life.
One attorney for a divorcing couple told of the couple’s disagreement over custody of the dog. The exceptional judge maintained composure in the face of the even more extraordinary argument: the husband’s attorney “told the judge he had interviewed the dog to find out which person the dog wanted to live with.”
To us, cats and dogs are humans without flaws, reflections of the people we’d like to be. In short, we see our pets more human than object, more family than some tied to us by birth. So be nice to your dog – someday you may belong to him!