Lawyers Must Plan for More Pet Custody Cases

Posted on August 18, 2006

So you’re representing the husband in a divorce proceeding, and he’s sitting in your office fuming.

“O.K., she can have the beamer. She can take the house. I don’t care about the boat,” he says. “But there is no way she’s getting Fluffy!”  

Of course, “Fluffy” isn’t the couple’s daughter. She’s a 10-year-old Golden Retriever.

That scenario’s growing ever more common as greater numbers of Americans stop thinking of dogs, cats and other animals as pets — or even mere companions. Today, they’re seen as family. And not just by the general public. The courts are starting to change their outlook, as well.

The number of custody battles fought over companion animals has grown noticeably in the past decade. See, e.g., Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999); Assal v. Kidwell, Civil No. 164421 (Md. Cir. Ct., Montgomery Cty. Dec. 3, 1999); Zovko v. Gregory, No. CH 97-544 (Arlington County (Va.) Circuit Court, Oct. 17, 1997); Arrington v. Arrington, 613 S.W. 2d 565 (Tex. App. 1981). Is this a serious issue? Yes. Will clients be willing to pay to fight over Fluffy in court? You bet. And will the judge view a Fluffy custody battle as anything other than, well…fluffy? Of course, that depends on the judge. But while battles over companion animal custody may be growing more common, they’re not all that new.  

In Akers v. Sellers, 54 N.E.2d 779 (Ind. App. 1944), a divorcing couple was contesting the custody of their Boston Bull Terrier, and the court explained that it would approach the resolution of the problem “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.” Id. at 779.

Technically, animals are considered to be property and traditionally, in divorce proceedings, judges would divvy them up in much the same way as they would the furniture. But there is increasing evidence that Americans view their companion animals as being inherently different from other forms of property. Consider the following studies and reports:

•    Approximately 124 million dogs and cats live in U.S. households — nearly one companion animal for every two Americans;

•    Forty-five percent of dog guardians surveyed claimed that they take their companion animals on vacation;

•    Fifty percent of companion animal guardians would be “very likely” to risk their lives for their animal, and another thirty-three percent said they would be “somewhat likely” to risk their lives;

•    If stranded on a desert island, more than fifty percent of companion animal guardians would prefer the company of a cat or a dog to that of a human.

William C. Root, Man’s Best Friend: Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 Vill. L. Rev. 423, 423 (2002) (footnotes omitted).  

The strong emotional bond between humans and other animals was summarized by California Supreme Court Justice Arabian in his dissenting opinion in Nahrstedt v. Lakeside Village Condominium Ass’n., 8 Cal. 4th 361, 390 (1994):

The value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation. People of all ages, but particularly the elderly and the young, enjoy their companionship. Those who suffer from serious disease or injury and are confined to their home or bed experience a therapeutic, even spiritual, benefit from their presence. Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning… Single adults may find certain pets can afford a feeling of security. Families benefit from the experience of sharing that having a pet encourages.

(While the majority disagreed with Justice Arabian on the issue of restrictive covenants for pets, the Court agreed with him on the subject of animal companionship).

This changing attitude toward companion animals is reflected in an increased number of custody battles and in the willingness of judges to consider the welfare or best interests of the companion animal when determining which party should get custody. In Juelfs v. Gough, 41 P.3d 593 (Alaska 2002), the Alaska Supreme Court upheld the award of sole custody of the family’s Labrador retriever to the husband because the wife’s other dogs threatened the Labrador’s life. Thus, it was determined that the dog was not safe at the wife’s residence. Id. at 595.

Courts are beginning to reject a strict property analysis and consider the best interests of the animal in deciding which party will be awarded custody. In Raymond, the plaintiff and defendant were former roommates who shared their apartment with plaintiff’s cat. After the two separated, plaintiff sought permanent custody of his “property.” After initially ordering the parties to “work out a visitation schedule” because it did “not appear to be within the best interest of the cat to shift custody back and forth,” the court reversed itself and awarded the cat to the plaintiff under a straight property analysis. Id. The appellate rejected this reasoning, awarding sole custody of the cat to the defendant, finding that the cat was a feeling individual, who had, for some time “lived, prospered, loved and been loved” by the defendant alone. Id.

Similarly, in Zovko, the court found that the happiness of Grady, the cat owned by the defendant, “took priority” over the property rights in a custody battle between two former roommates. NO. CH 97-544. The court ruled that is was in the “best interest of Grady” to be awarded to the non-owner roommate. Id.

According to Gary Skoloff, Esq., author of New Jersey Family Law Practice, Editor-in-Chief of the Family Law Magazine of the American Bar Association and former chair of the ABA Family Law Section, “judges consider pet custody a legitimate issue. Many of the same arguments pertaining to child custody fit and no judge laughs at this.” Joan Lowell Smith, Pet Custody No Laughing Matter, N.J. STAR LEDGER, Mar. 9, 1997 (1997 WL 8052984).

In determining who should be awarded custody, the court may want to consider which party has paid attention to the animal’s basic daily needs (food, shelter, physical care, exercise, grooming, flea control); who takes the animal to the veterinarian; who provides for social interactions (in the case of dogs) with other dogs and/or with people; who maintains appropriate supervision to assure that state and local regulations are complied with (licensing, not allowing the dog to run free and protecting against circumstances that would endanger her life or health); and who has the greatest ability to financially support the animal.

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. Attorneys should be prepared to handle these issues for their clients.

There are a lot of Fluffys out there — and a lot of people willing to fight over them in court. Whether animal or human, they all deserve to be represented by lawyers who take their case seriously.

Written by Joyce Tischler, ALDF’s Founder and General Counsel, and Bruce Wagman, ALDF’s Chief Outside Litigation Counsel

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