As a society our views about
animals have changed significantly over the last 25 years. A recent book by David Grimm, wittily titled
“Citizen Canine,” discusses many of the interesting legal issues that arise in
the area of animal rights as a consequence of those changes. One, which we blogged about last month, is
that a majority of states now have special laws to permit a pet owner to create
a trust to care for his or her pet after death. This week we are writing about
pet custody when pet owners divorce.
Despite the affection we may have for them, pets are still considered property for purposes of divorce law. That means a prenuptial or postnuptial agreement can be entered into to establish who gets ownership in the event of a break-up. Family lawyers have observed a rise in pet custody disputes, so entering into an agreement ahead of time may be a good solution. http://www.prnewswire.com/news-releases/pet-custody-disputes-on-the-rise-find-nations-top-matrimonial-lawyers-245220181.html For example, during the recent temporary (albeit dramatic) break-up of Johnny Weir and his husband, Victor Voronov, one of the subjects of dispute was custody of their Japanese Chin lapdog, Tema. Although Weir bought the dog, Voronov claimed the dog was gifted to him by Weir and that Voronov was the primary caretaker. Before they reconciled it was reported that a New Jersey judge had ordered them to temporarily share custody pending a final decision about ownership.
As with other issues in
divorce, mediation may be a good solution to resolve a pet custody
dispute. If the dispute does end up in
court, some judges may evaluate the way the parties have cared for the pet and
their relationship to the pet in order to decide who gets the pet. Last year a New York judge held a hearing,
reportedly the first of its kind in New York, to determine which spouse’s ownership
would be in the “best interests” of a dog named “Joey.” Such a hearing is similar to those held to
determine contested child custody in a divorce.
In a 2007 Virginia case the court actually appointed a lawyer to help
determine the best interests of a dog who was the subject of a 4-way custody
battle after the death of its owner. http://voices.yahoo.com/dog-involved-custody-battle-assigned-lawyer-335484.html?cat=17. In a recent
Vermont case a judge held an extensive evidentiary hearing before awarding a
dog, “Belle,” to the husband. The judge
decided that the husband had taken better care of Belle during the marriage – the
husband took Belle to work with him every day and, in the judge’s words, treated
Belle as a dog, while the wife treated Belle as a child. http://www.courthousenews.com/2014/05/02/67558.htm
In general, factors that may be relevant in awarding custody include: whether the pet was owned prior to marriage by one of the parties, who cares for the pet on a day to day basis, whose schedule is better to set up to care for the pet, where the pet will be safest, and where any children of the marriage will be living (it may be the pet should be with the parent who has primary custody of the children).
Because they are considered property, some courts have taken the view that ownership of a pet must be awarded to one spouse or the other, with no power to direct visitation or other type of shared custody. In the Vermont case about Belle, the wife appealed to the Vermont Supreme Court, challenging also the judge’s refusal to order any shared custody. The Vermont Supreme Court, however, agreed with the trial judge. On the issue of shared custody the Vermont Supreme Court said: "In contrast to a child, a pet is not subject to a custody award following a determination of its best interests. Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is generally final and not subject to modification. Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal." Courts in in several other states have reached a similar conclusion. On the other hand, in a 2010 case a Maryland judge directed a divorcing couple to share custody of a dog named Lucky – with each caring for the dog for 6 months of the year -- based on the theory that the dog was joint marital property under Maryland law. Lucky’s case shows that some judges may be more sympathetic to pet loving litigants than others. However, if the parties want to arrange shared custody it is probably better if they work that out privately rather than relying on a court which may conclude it lacks the power to do so.
Another family law related issue that has recently come up is custody of a pet in cases of domestic violence. A proposed New Hampshire Bill would let judges grant custody of pets and include them in a restraining order in some cases. The bill is intended to protect pets from domestic violence, and also give victims of domestic violence assurance that their beloved pets will not have to remain behind and be subject to abuse. There was concern that some victims of domestic violence might hesitate to leave if they had to abandon their pets. http://portsmouth-nh.patch.com/groups/politics-and-elections/p/pets-could-be-included-in-domestic-violence-law
Disclaimer – Postings Not Legal Advice
This blog is not legal advice and no
attorney-client relationship is formed.
The information and materials on this blog are provided for general
informational purposes only and are not intended to be legal advice. The law changes frequently and varies from
jurisdiction to jurisdiction. Being
general in nature the information and materials provided may not apply to any
specific circumstances. Nothing on this
blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult
with an attorney licensed to practice in your jurisdiction.
