Written by Suzana Gartner & Alyssa Kelliher
Divorce can be messy and hard during normal times. When you consider the global situation and the pandemic, the stresses can be more difficult. Even with amicable divorces, separating a single household into two can be challenging. Separation is even harder when children and animals are involved.
Pet custody and ownership disputes are on the rise, and there is likely to be an upward trend. Unfortunately, forced confinement due to this pandemic and news reports indicate there might be a surge in divorce filings. What happens to the family pet upon dissolution, and who gets to keep the family dog or cat after parties’ relationship dissolves and split up?
For years most courts have used the best interest of the child test to determine custody arrangements for children. In New York, courts use some of the following factors to determine the child’s best interest: which parent has been the main caregiver/nurturer to the child, the parenting skills of each parent, the mental and physical health of the parents, whether there have been domestic violence in the family, the work schedules and child care plans of each parent, the child’s relationship with brothers, sisters, or other members of the family, what the child wants depending on the age of the child, each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent when it is safe to do so[i]. Similar factors should be consistently used to determine the custody of pets.
Historically, animals were viewed as mere things[ii]. When a divorce occurred, pets were viewed as property and separated between the couples as such. Courts would require one spouse to buy out their interest in the pet or would allocate alternative marital property in order to even-out the overall property division. However, our modern society treats dogs more like children than property. We buy them treats, we take them on vacation, bring them to family gatherings, take them to the vet, enroll them in puppy kindergarten, worry about their manners and socialization, and even use the same sing-song tones when speaking to them that we use when speaking to babies and young children[iii]. As society evolves, the law is always slow to catch up. But, slowly, the law is beginning to catch up with the times and recognize animals as sentient beings.
Recently a few American states like California, Alaska, and Illinois have sought to change what factors are considered when deciding who gets the dog in a custody case[iv]. The first deviation from the idea that dogs are merely property came in 1942 when Chicago Judge Joseph Sabath startled the legal world when he awarded a couple joint custody of their dog Kiddo, a black cocker spaniel, specifying that each couple should have the dog for six months of the year.[v] In 1983, California State Judge John Wooley held that the custody dispute of Runaway, a two-year-old cockapoo, had to be dealt with in accordance with California’s child custody laws[vi].
In Minnesota, the court allowed an individual to seek immediate emergency relief when her pet was not returned in accordance with the terms of a finalized separation agreement[vii]. The judge responded the same way he would if a child was not returned and ordered a sheriff’s office to send a deputy to enforce the custody order and return the dog[viii].
In the present day, more judges are using the same “best interest” criteria used to determine child custody cases for pet custody cases. It’s a milestone for animal activists everywhere that more judges are now leaning towards evaluating what the best interest of the dog in custody dispute cases is. Unfortunately, when deciding pet custody cases, a lot of discretion is still awarded to the judge. So, if you get a judge who isn’t an animal lover or who doesn’t understand the bonds pets and their owners form, the pet can still be divided as property or an asset. In 2002 a Pennsylvania appeals court dismissed an application for visiting rights to a dog named Barney because the Court said that to do so would be the same as a visitation schedule for a table or lamp[ix]. So, as you can see, although some progress has been made in how pets, especially dogs, are viewed in the law-there is still a long way to go. State courts should determine a set of factors to be used in all dog custody dispute cases, much like what states do in child custody cases. California did just this in 2019. California Assembly Member Bill Quirk introduced a bill to give pets more consideration and to elevate their status past that of just “community property[x].” This bill was signed into law by Governor Jerry Brown. Assembly member Quirk noted that by providing clear direction, courts would award custody based on what is best for the animal[xi]. Other courts should follow California’s example.
We love all of our animals. They are often times the nucleus of our family units. They provide unconditional love, comical relief when times are hard, love, and support when we are sad and celebrate with us when times are good. Dogs see all members of the family as part of their pack. They, at the very least, deserve to see all the people they love when a family unit reconfigures due to no fault of their own.
[i] Best Interests of the Child. New York City Bar. https://www.nycbar.org/get-legal-help/article/family-law/child-custody-and-parenting-plans/best-interests-of-the-child/
[ii] Global Action Network. Cows. http://web.archive.org/web/20140729150301/http://www.gan.ca:80/animals/cows.en.html
[iii] In a Divorce Who Gets Custody of the Dog? Psychology Today. Oct. 03, 2018. Stanley Coren PhD., DSc, FRSC. https://www.psychologytoday.com/ca/blog/canine-corner/201810/in-divorce-who-gets-custody-the-dog.