In most states, the law still treats your dog Rover like your Land Rover when you are getting divorced. However, it is high time our laws changed to reflect the depth of attachment between people and their pets – treating Fido more like a child than a sofa when “pet-parents” are going through a divorce.
By Rob Teir, Family Lawyer
Under the Anglo-American common law, dogs are property. Taking them without an owner’s consent, including by killing a dog, can be made a criminal offense by the Legislature, but, under property law, a dog is no different than a stamp collection, or a sofa. The Texas Supreme Court recently emphasized this legal position in a case that began with an acknowledgment that Texans love their dogs, but holding that no emotional-related damages may be collected by a Plaintiff for harm to a dog. That is, the only damages a court can be awarded for the killing or taking of a dog is the retail value of the dog:
“The human-animal bond, while undeniable, is uncompensable … We understand that limiting recovery to market (or actual) value seems incommensurate with the emotional harm suffered, but pet-death actions compensating for such harm, while they can certainly be legislated, are not something Texas common law should enshrine.” – Strickland v. Medlen, 397 S.W.3d 184, 198 (Texas 2013).
How Family Law Treats Dogs in a Divorce; Pets are Property, not “People”
The law is no different when it comes to divorces. A dog is lumped in with other marital property, gets divided with the other marital assets, without regard to which party has what relationship with the dog, which party loves the dog (or loves the dog more). Texas family courts also do not try to take into account what is in the best interest of the dog when deciding where Rover shall live post-divorce. This means, amongst many other things, that the residence of the children of a marriage also has no bearing on where the dogs will end up.
In Charles Dickins’ novel, Oliver Twist, Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “the law supposes that your wife acts under your direction.” He promptly replies: “If the law supposes that, the law is an ass.” I have the same reaction to the Texas law on dogs as property in a divorce. I also think that the law, as it currently stands, is completely blind to how an overwhelming majority of humans view their dogs, and the role dogs have in their human companion’s lives. Just as a tortfeasor who harmed a dog (or killed it) took away far more than the dog’s retail value, the dog is likely to be seen by nearly all divorcing parties as more important than the crystal collection, or the Springsteen on vinyl.
Science Confirms that Dogs and their Humans Form Strong Familial Bonds
You probably have noticed what science confirms:
- Unlike sofas and stamp collections, dogs are alive; and
- Perhaps akin to some sofas and some stamp collections, but far more often and far more uniformly, people form emotional attachment with their dogs;
- This emotional attachment is often strong, resulting in grieving and tears upon the loss of a dog, and terror that a dog may go wanting or be mistreated;
- This emotional attachment runs in both directions.
The law ignores all of this, and keeps dogs in the status of property just like, at one time, wives and children were property.
Oddly, the family law’s treatment of dogs as property ends with the civil law. States and their subdivisions routinely investigate a person who applies to adopt a dog at a government-run shelter. If a human is cruel to an animal, the human is subject to criminal charges, not to mention an interruption of their promising career in the National Football League. In other words, the states will deny someone their liberty because of their relationship with a dog, motivated entirely by the dog’s welfare, but that same welfare is ignored in tens of thousands of divorce cases every year
The family law’s view of pets is also inconsistent with how even the common law is developing. For instance, unlike the venerable law of finders of property, the law often imposes a duty upon the finder of a lost pup to locate its human, and responsibly care for it, before the finder can acquire legal title. See Houseman v. Dare, 405 N.J. Super. 538, 966 A.2d 24 (N.J.A.D. 2009); Ryan v. Louisiana SPCA, 62 So.2d 296 (La. App. 1953).
Divorce law, nearly everywhere (or, more precisely, in 47 states), remains unchanged. No attempt is made to impose a custody decision, and nothing in Texas law prevents placing a dog with a divorcing party, at least in the absence of a history of dog fighting or a penchant for dog-burgers. See, e.g., In re Marriage of Stewart, 356 N.W.2d 611 (Iowa App. 1984) (“while courts should not put a family pet in a position of being abused or uncared for, we do not have to determine the best interests of a pet”). Our family courts are permitted to order that a dog, no matter beloved, be sold and the proceeds of the sale divided amongst the divorcing parties. Of course, while that is legally permissible, I wish any Texas judge who does so good luck on her or his re-election campaign.
A Bone of Contention: Determining a Dog’s Best Interests
I suspect this craziness will end. While determining the best interests of a dog is not easy, and arguably not objectively possible, and while it increases the investigative burden of our family courts, the burden I envision is not different from what courts must do with children, even if the child is just months shy of her 18th birthday.
The first crack in the legal façade on dogs in divorces came in 2000, when a couple in San Diego spent $150,000 in a two-year court battle over possession of their pointer/greyhound mix, Gigi. The divorce court patiently heard evidence from an animal behaviorist and a video presentation, entitled “Day in the Life of Gigi.” It showed Gigi sleeping under the wife’s chair and cuddling with her. She was eventually awarded custody. However, no legal principle was revised, and there is no appellate decision to cite.
In 2014, Vermont became the first of our sister states to revisit its law about dogs in divorces. The Vermont Supreme Court held, in Hamet v. Baker, that, while dogs were not the same as children, a family court must determine the best interests of a dog and make what is in fact, even if it is not yet called, a dog custody determination:
“we hold that the family division may consider other factors not set out in the statute: the welfare of the animal and the emotional connection between the animal and each spouse.” – Hamet v. Baker, 197 Vt. 339, 97 A.3d 461, 464 (Vermont 2014).
Perhaps we should not be surprised that the tiny (in geography and population) state of Vermont leads the country on this front. It also was the first state to grant equal rights to same-sex couples.
Hamet v. Baker was unlikely an easy case for the trial court to decide. The case did not present the Court with any allegation of animal neglect or abuse, and did not present a choice where one party was largely indifferent to the dog. Indeed, fighting a case that involved no children, and no other disputes property, to the state’s Supreme Court, with the parties’ only bone of contention was that both parties wanted to retain Belle, a German wirehaired pointer, arguably tells you, standing alone, the potential emotional attachment between human and dog. There was no evidence of Belle’s market value beyond any other German wirehaired pointer with her training and age.
People can agree or disagree about how the Vermont Supreme Court went about determining the best interests of the dog. It held that the trial courts should, as the primary factor, determine which spouse is most active in caring for the dog.
The Court also found it instructive that the prevailing party, the husband, treated Belle like a dog, while the wife tended to treat Belle like a child. In the end, the husband prevailed because he was in the practice of taking Belle to work with him, routinely. He was able to do so because of his career path: he is a veterinarian.
Pet Custody, Visitation, and Support
Further tinkering is likely needed, and forthcoming. We do not know, for instance, if a party’s agreement as to the custody of Fluffy or Rover will prevail without judicial review of the dog’s best interest. Additionally, the rules on visitation and support may or may not develop as an offshoot of this monumental holding. Cf. In re Marriage of Tevis-Bleich, 723 Kan.App.2d 982, 939 P.2d 966 (Kan.App. 1997) (declining to modify divorce decree that granting former husband right to visit what was formerly the family dog).
It is unknown if courts can retain jurisdiction over a divorce, as they do when minor children are involved, to ensure that the pup placement is working out as anticipated. I also wonder if shared custody arrangements will be tried. Right now, that is actually possible under Texas law, but only just as a court-ordered trading of sharing possession of a television can be ordered. Both, it bears repeating, are community property under the state’s law.
A trial court in New York City found itself, in 2013, with a case disputing custody over Joey, a miniature dachshund. The two spouses fighting over Joey brought evidence to the Court, such as the side of the bed where Joey preferred to sleep. See Travis v. Murray, 42 Misc.3d 447, 977 N.Y.S.3d 621, 2013 N.Y. Slip Op. 23405 (2013).
Justice Matthew Cooper knew he was being asked to venture to uncharted legal territory, which he found surprising in such a “canine-centric city.” Id., 42 Misc.3d at 448. Justice Cooper added that he understood that most people would not part with their dogs even if offered one million dollars in cash to do so. The Justice also had a retort to those who might argue that puppy custody determinations were a waste of judicial resources, observing that, “if judicial resources can be devoted to such matters as to which party gets to use the Escalade as opposed to the Ferrari, or who gets to in the Hamptons house instead of the Aspen chalet, there is certainly room to give consideration to a case involving a treasured pet.” Id., 42 Misc.3d at 460.
Judge Cooper ordered the parties to proceed to a custody hearing for the dog. The case then settled. Travis v. Murray case came a decade after C.R.S. v. T.K.S., 192 Misc.2d 547 (2002), where the Court confirmed that a dog is “chattel” (describing this as “a legal issue not disputed here”), in response to the husband’s argument that the dog is “no different than a sofa, home, or bank account.” Id., 192 Misc.2d at 549. It is, of course, anyone’s guess what the New York Court of Appeals would do with our question, but that court is not exactly known for its unwillingness to take bold steps.
California’s New Pet Law Allows Judges to Create Shared Custody Agreements
California has elected to change its law, and follow Vermont, by legislation, rather than wait for a ruling from its appellate courts. The new state law, AB 2274, which took effect with the new year, empowers judges to consider “the care of the pet animal” and create shared custody agreements. The law’s legislative sponsor, Assemblyperson Bill Quirk said that the law “makes clear that courts must view pet ownership differently than the ownership of a car, for example. By providing clearer direction, courts will award custody on what is best for the animal.” The bill was signed into law by then-Governor Jerry Brown, presumably in the presence of First Dogs Luci and Cali.
The changes are not limited to the so-called ‘blue states.’ Dogs are loved and understood by conservatives too. In 2010, an Alabama appeals court ruled that “where a pet is the subject of a division of property, the courts sometimes consider the best interest of the animal, and, as a pet is personal property, sometimes do not.” – Placey v. Placey, 51 So.3d 374, 379 (Ala.App. 2010) [citing 3B C.J.S. Animals §4 (2003)].
The Placey then proceeded to ignore the dog-as-mere-property law:
“The testimony at trial, while conflicting, would support the conclusion that Preston was cared for primarily by the mother, who testified that Preston was high maintenance.’ The mother explained that Preston had to be walked every day and that he required special expensive dog food…. The mother had cared for Preston since the daughter’s removal from the family home in 2008.
The trial court determined that Preston would be better cared for in the family home occupied by the mother, where Preston had spent the last six years of his life. The trial court noted at trial that the daughter was living in a hotel and that Preston needed a yard and not the cramped quarters of a hotel room. Thus, it appears that the trial court considered the best interest of Preston in determining that the mother was Preston’s true owner.
The case was near and dear to my heart, not because I knew the parties or Preston, but because my beloved Great Pyrenees is named Preston.
How Family Law Treats Dogs in a Divorce: The Times They are a-Changin’
These states “get it”: they understand how much a dog usually means to the humans with whom it lives. Consideration of the dog’s welfare and the emotional relationship with the parties, therefore, either became, or is in the midst of becoming, the duty of the state’s family courts, forevermore.
I suspect that one day soon, dog custody determinations will become the norm. As with the tort of wrongful death, a constitutional right to sexual privacy, and strict liability for products liability, monumental changes in the law start, in the United States, with one state at a time.
It seems preferable to let the law change with regard to dogs in a divorce. Whether the resulting changes are applied to other species will be a question for another day. Woof.
Rob Teir is a family lawyer based in Houston, Texas. His legal career has included experiences with a large Washington, D.C. law firm, assisting city governments and police departments in developing and defending urban quality of life initiatives, in addition to assisting individuals and small businesses when they need legal help. He has also published articles in many legal publications, as well as major newspapers, and he has appeared as a commentator on the Today Show, CNN, National Public Radio, Fox News, and the Orpah Winfrey Show. Rob lives in Houston with two Great Pyrenees Mountain Dogs, one of which has a pet cat.
A version of this article, “The Best Interest of the Dog,” was originally published on www.teirlaw.com
Pet Custody Cases Should be Taken Seriously
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