Divvying up the Dogs?

Posted by Matthew Liebman, ALDF Staff Attorney on July 1, 2009

In March, a New Jersey appeals court ruled that judges can consider the human-animal bond in deciding who gets custody of companion animals when couples separate. This precedent-setting case centers on a seven-year-old pug named Dexter, who was purchased by Doreen Houseman and Eric Dare in 2003. The engaged couple subsequently broke up, dividing their belongings, and it was orally agreed that Houseman would keep Dexter. But things got complicated when Houseman went on vacation and left Dexter with Dare, who refused to relinquish the dog upon his ex-fiancé’s return. Houseman took Dare to court, and a judge awarded her the $1,500 value of Dexter, but refused to enforce the terms of the couple’s agreement that would have given her custody of him.

Houseman appealed, and ALDF filed an amicus curiae brief, arguing that the court should consider Dexter’s interests in reaching its final decision. In reversing the trial court, the appeals court concluded that a pet has “special subjective value” that cannot be compensated by money alone. The decision gives Houseman a chance to regain her beloved pug.

This case is a mixed blessing. On the one hand, the court acknowledged the significant bond that guardians have with their companion animals. It recognized and considered the sentimental attachment that Ms. Houseman had to Dexter. That is certainly a step forward. At the same time, however, the court refused to adopt the ‘best interests of the animal’ standard that ALDF advocated in our amicus brief. Under that standard, companion animals would be treated as sentient beings with interests that are independent of those of their owners. The question would not be ‘Who has a valid claim to own or possess Dexter?’ but ‘Which guardian will best provide for Dexter’s interests?’ The court expressed its doubt about whether courts could manage that determination. But an animal’s interests are no more difficult to ascertain than those of a child or an elderly relative, and determining which party can best provide for those interests should be fairly easy to figure out.

There is cause for hope: The court included a caveat in its rejection of the standard proffered by ALDF. It suggested that the best-interests standard might apply in cases involving animal cruelty. This means that if one of the parties to a custody dispute is likely to abuse or neglect the animal in a way that amounts to cruelty under state law, their property right to the animal could be overridden, and the animal could be placed with the party who would best provide for the animal’s interest. This qualification reflects the court’s implicit recognition that animals do in fact have interests and should be treated as more than inanimate property under the law.


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