The entrenchment of agricultural-based norms in legal conflicts involving pets and companion animals serves neither our citizens nor our families well. The analysis of many cases involving pet law will reveal that when it comes to pet custody disputes, we are often thrown back in time.
By Barbara J. Gislason, Family Lawyer and Animal Lawyer
The terminology for how animals are referred to in American case law varies widely. They may be viewed as quasi-property, a thing, sentimental property, personal property, tangible property, animal property, chattel, equipment, an invention, a product, a good, a special category of property, a law enforcement professional, a noncommissioned officer, a best friend, a companion animal, a crime victim, or a family member. Hereinafter, we will call these terms “the continuum.” Another way this topic is explored is through the emerging idea that animals are now in an interim category between property and person.
As courts wrestle with these classifications, legislators have shown their interest in animal subjects by passing a wide spectrum of animal welfare and protection laws. In this article, we will explore whether there is convergence; many threads, young and old, comprise the tapestry of our legal system. In pet law, all participate in shaping pet custody jurisprudence within a cultural context.
Defining Pets and Companion Animals
There is no universal definition for a pet or companion animal, although there is a current trend to use these nouns interchangeably. The American Society for the Prevention of Cruelty to Animals (ASPCA) defines a companion animal as “domesticated” or “domestic-bred” and whose physical, emotional, and social needs are readily met.
If instead the animal is used for work, research, sports, or utility, or could be classified as livestock, the animal would not be considered a pet or companion animal. It is for the above reasons that service animals, including those who serve the blind, or animals that provide law enforcement or armed forces duties, are classified differently than companion animals are.
Criteria for identifying a companion animal might include the following:
- Purchased or acquired to be a family pet
- Provides companionship
- Has a name
- Provides no significant source of income
- Receives appropriate food, water, shelter, and veterinary care
- Is bonded to a family member
- Is held out as a pet or companion animal
- Lives indoors
- Owner describes him- or herself as “mom” or “dad”
- Image appears in family photographs, including on social media
- Image is reflected on a computer or cell phone screen saver
- Name is included in family listings
- Acts like a pet
- Brings pleasure
- Provides protection
- Has a guardian
- Is treated kindly and affectionately
Criteria for animals that might not be considered companion animals could include the following:
- Not regularly fed
- Not domesticated
- Not named
- Not bonded to a family member
- Sleeps outside
- Not properly cared for
- Used for sports, entertainment, or performance
- Used for research purposes
- Primary purpose is to breed
- Is a service animal
- Performs work
- Illegal to own
The Annual National Pet Owners Survey (American Pet Products Association)
Notwithstanding the fact that there is no uniform definition for pets and companion animals, there is an abundance of statistical information about them, much of it promulgated by the American Pet Products Association. This organization offers a well-publicized annual National Pet Owners Survey. The information collected concerns dogs, cats, freshwater fish, saltwater fish, birds, small animals, reptiles, and horses.
Yearly statistics provided by the American Pet Products Association reflect our dedication to animals. Sixty-five percent of American households own 207 million pets, excluding fish. In 2020, Americans spend $103.6 billion on their pets’ food, supplies, over-the-counter medicine, veterinary care, animal purchases, grooming, and boarding. Thus far, the survey offers no information regarding pet cremation or burial expenses, but this may change; by 2013, there were already 700 pet funeral homes, crematories, and cemeteries. The extraordinary amount of money spent on pets suggests that their value exceeds their purchase price.
Wrestling with the definition of pets and companion animals reminds one of the public frustration following the decision in Jacobellis v. Ohio, a case famous for the court’s inability to define the word “obscenity.” In a concurring opinion, Justice Potter Stewart, rather than defining obscenity, instead said, “But I know it when I see it.” In some ways, the task of sorting out who is a pet and who is not a pet has similar subjective characteristics. Even so, consider the following rule of thumb: companion animals have value beyond their economic value; they have relational value. Another way to think about this subject is that both private decisions and public policies are shaped by personal or societal preferences that are, in essence, our values.
Pets and Companion Animals in the Legal System
The landmark decision of Rabideau v. City of Racine captures our collective struggle regarding which pets belong in the legal system and where. In Rabideau, the court said:
“At the outset, we note that we are uncomfortable with the law’s cold characterization of a dog, such as Dakota, as mere “property.” Labeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog.”
The Rabideau court also expressed the concept of who can be the beneficiary of love from the human heart in a modern soliloquy. Even so, the court ultimately decided:
Humans have an enormous capacity to form bonds with dogs, cats, birds, and an infinite number of other beings that are non-human. Were we to recognize a claim for damages for the negligent loss of a dog, we can find little basis for rationally distinguishing other categories of animal companions.
The 1897 U.S. Supreme Court decision in Sentell v. New Orleans Carrollton Railroad Co. cast a dark shroud over all animals. There, the court said:
“Property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae, in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals, kept for pleasure, curiosity, or caprice.”
The court went on to single out dogs for additional negative attention, adding:
“They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draught (except to a limited extent), nor for food. They are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race.”
Later decisions rely on, rather than distinguish themselves from, this historic relic that imagined the animal kingdom in three categories. A horse, a cow, and a sheep are higher than a cat, a singing bird, or a monkey, while a dog is not even worthy of any property classification unless “dead” or “subdued.” Even worse, the court described dogs in this decision as subject to “attacks of hydrophobic madness.”
In addition to the above, it is notable that the court’s 1897 classification ranked domestic animals with commercial value first and portrayed a point of view about the cats and singing birds kept “for pleasure, curiosity or caprice.” Even though this decision is still quoted in modern jurisprudence, one can imagine that the judges relying on the Sentell precedent are either able to utilize an Orwellian doublethink ability or are ignorant about the place of pets and companion animals within our culture and within their own homes.
Pets and Companion Animals: Absolute Rights
In searching for the roots of current jurisprudence, remember that 49 states are grounded in English common law. In the 18th century, Sir William Blackstone wrote Commentaries on the Laws of England, a book thought to have influenced Alexander Hamilton, John Marshall, and Abraham Lincoln. Blackstone advocated that the English common law conferred “absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason,” which were “the right of personal security, the right of personal liberty, and the right of private property.”
The U.S. Supreme Court relied on Blackstone’s correlation between legal right and remedy in Marbury v. Madison when it held that the “very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Blackstone also articulated the idea that “relative rights, such as those that are based on the marital relationship, are rights that are defined solely by membership in civil society.” Carrying his idea forward, evolving ideas about who is allowed to be a family member could be a basis for advancing animal relational interests in a family law context.
The Animal Welfare Act
The Animal Welfare Act is a federal law first passed in 1966 that regulates commercial dog and cat breeding, animal exhibits, and research laboratories that use live animals. Under Section 1.1 of this Act, animals are defined as “any live or dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or any other warm-blooded animal, which is being used, or is intended for use for research, teaching, testing, experimentation, or exhibition purposes, or as a pet.” Birds and some small animals have no protection under the Animal Welfare Act.
Over the years, various efforts have been made to pass amendments to the Animal Welfare Act, including the Puppy Protection Act of 2001, the Pet Animal Welfare Statute of 2005, and the Puppy Uniform Protection Act of 2008. Registries that receive substantial revenue from large commercial breeders are known to oppose these reforms.
A client who searches for a lost pet or surrenders a pet to a humane society, perhaps because of a no-pets policy or zoning requirement, may have no idea that the Animal Welfare Act could impact the pet ending up in a research laboratory. This can happen if the relinquishment occurs in a state with pound seizure laws. When animals become lost, there can be a very short window of time for finding them, as shelter hold period obligations typically range from three to seven days. This means that once the hold period expires, title and ownership of the animal can be transferred, or the animal can be “disposed of.”
Animal Enterprise Terrorism Act
A federal law that has gained notoriety is the Animal Enterprise Terrorism Act. Passed after September 11, 2001, this act defines two kinds of crimes, one grounded in economic loss and the other in fear of or actual physical injury. It also includes sanctions for co-conspirators. Although seemingly aimed at terrorists, the federal law is easily applied to thwart animal rights nonviolent protesters and may have a chilling effect on free speech.
Statutes and Ordinances for Pets and Companion Animals
Pet law and pet custody disputes are impacted more by state statutes and local ordinances than by federal laws. Using the state of Minnesota as an example, key animal protection laws include these:
- Minnesota Statute § 343.21 prohibits torturing or neglecting an animal.
- Minnesota Statute § 343.24 prohibits keeping animals under inhumane conditions and cruelly transporting them.
- Minnesota Statute § 343.26 requires that animals have shelter for five months a year unless the animal has a suitable coat.
- Minnesota Statute § 343.31 prohibits dog fighting, which is considered a felony.
- Minnesota Statute § 343.40 regulates dog housing.
- Minnesota Statute § 518B.01 permits companion animals to be included in orders for protection.
- Minnesota Statute § 501C.0408 permits estate planning for companion animals through pet trusts.
As reflected above, the Minnesota legislature has passed laws to protect companion animals, thereby promoting their best interests. A logical inference that could be drawn from the passage of animal welfare and protection laws in Minnesota is that the legislature is able to distinguish pets from inanimate personal property. Although Minnesota is representative of the growing trend for both legislators and courts to treat companion animals in a special way, Minnesota is also representative of a state where the courts seem to be all over “the continuum.”
Applying the Law to Pet Custody Disputes
A good example of how courts are reimagining how to apply the law to pet custody disputes was offered by the Honorable Regina M. Chu, a Minnesota trial court judge. She made a decision in a replevin case involving a failed nonmarital relationship where a couple jointly adopted a dog from a humane society. Although a conciliation court judge had found in favor of the plaintiff, on appeal to the district court, Judge Chu utilized four factors and found in favor of the defendant. These four factors were:
- who selected the dog and paid the initial adoption fee,
- the extent of the care and love provided to the dog,
- to what extent each party provided financial support, and
- which result was in the dog’s best interests.
Pet Law and Culture
The struggle with how we will fold companion animals into our rule of law takes place within the pulse of underlying institutions, routines, and norms of a society. Institutions and routines, established in the context of an organized society, influence how courts respond to contemporary problems about who should be allowed in the family. Norms represent our shared understanding of standards of appropriate behavior. We may be unaware of our internalized norms and simply consider them to reflect common sense. Norms affect and reveal behavior potentials for jurists, lawyers, alternative dispute resolution professionals, and clients alike. Laws exist within a cultural context; it is important to consider how law reflects culture and culture reflects law.
The 1897 Sentell decision, discussed above, embodies the patterns of interactions between humans and animals in the 19th century, a time when animals suffering from rabies could also suffer from, to quote the Sentell decision, “attacks of hydrophobic madness.” It is noteworthy that Louis Pasteur and Emile Roux only discovered a vaccine for rabies, formerly known as hydrophobia, the decade before the Sentell decision was rendered. The world had changed, in part due to science, by the time the Supreme Court of Wisconsin offered its 2001 decision in Rabideau v. City of Racine. Even so, the effect of Sentell continues. The entrenchment of agricultural-based norms in legal conflicts involving companion animals serves neither our citizens nor our families well.
The new cultural norm in America is reflected by the fact that more than half of U.S. states allow companion animals to be included in orders for protection. Even so, the analysis of many cases involving pet law will reveal that when it comes to pet custody disputes, we are often thrown back in time.
. A police dog was buried with full police honors, including a 21-gun salute. Eun Kyung Kim, “Forever in Your Debt: K-9 Buried with Full Police Honors after Dying in Line of Duty”, Today.
. The question of whether a military working dog has a rank in the military is illustrative of how we value, and do not value, police dogs. Although these dogs are referred to as noncommissioned officers (NCOs), by tradition, the dogs lack a rank. Even so, their abuse is prosecuted under Article 134 of the Uniform Code of Military Justice (UCMJ), not Article 91. The latter article applies to conduct involving an NCO. See “Here’s Why Military Working Dogs Outrank Their Human Handlers,” and “What’s the Truth about US Military Service Dogs Being Ranked Higher Than Their Handlers?”
. See Rabideau v. City of Racine, 627 N.W.2d 795, 797 (Wis. 2001).
. In New York, it is now legal for humans to be buried with the cremated remains of their pets. “Forever with Fido: NY to Allow People to Be Buried with Pets“.
. See Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc. 2d 530, 415 N.Y.S.2d 182, 183 (City Civ. Ct. 1979); Juelfs v. Gough, 41 P.3d 593 (Alaska 2002); and Morgan v. Kroupa, 702 A.2d 630, 167 Vt. 99 (Vt. 1997).
. The amount spent on veterinary care includes the cost of pet insurance.
. Stephen J. Dubner, “The Troubled Cremation of Stevie the Cat: A New Freakonomics Radio Podcast“, Freakonomics, (last visited Oct. 10, 2016).
. 378 U.S. 184 (1694) 84 S. Ct. 1676, 12 L. Ed. 2d 793.
. 627 N.W.2d 795, 797 (Wis. 2001).
. 166 U.S. 698, 17 S. Ct. 693, 41 L. Ed. 1169 (1897).
. William Blackstone, Commentaries, 1:120–41, Amendment IX, The Founders’ Constitution.
. 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803).
. William Blackstone, Commentaries, 1:120–41, Amendment IX, The Founders’ Constitution.
. 7 U.S.C. § 2131–59.
. This includes buying animals for breeding and selling them to pet stores or resellers.
. According to the Humane Society of the United States, the American Kennel Club has opposed these types of Animal Welfare Act amendments. The American Kennel Club: No Longer “The Dog’s Champion?” AKC Should Stand up for Dogs, Not Puppy Mills, The Humane Society of the United States, http://www.humanesociety.org/assets/pdfs/pets/puppy_mills/report_akc_breeders.pdf (last visited May 12, 2016).
. Pound Seizure Laws, American Anti-Vivisection Society, http://aavs.org/animals-science/laws/pound-seizure-laws/ (last visited Sept. 22, 2016).
. 18 U.S.C. § 43.
. Barbara J. Gislason, Animal Enterprise Terrorism Act: Designing a Poison Pill for a Social Movement, American Bar Association Tort Trial & Insurance Practice Section Media, Privacy & Defamation Law Committee 2007 Annual Meeting.
. With the 2016 passage of the Minnesota Pet Trust Bill, all 50 states now permit estate planning where animals, in effect, are beneficiaries. Barbara J. Gislason and Dr. Steven Barghusen played an active role in passing this bill.
. See Pratt v. Pratt, N.W.2d, 1988 WL 120251 (Minn. Ct. App.). In this famous decision, the court signaled that in a divorce context, evidence of dog mistreatment could be relevant decision-making criteria.
. This replevin order can be found in the appendix.
. 627 N.W.2d 795, 797 (Wis. 2001).
This article has been edited and excerpted with permission from Pet Law and Custody: Establishing a Worthy and Equitable Jurisprudence for the Evolving Family by Barbara J. Gislason (American Bar Association, 2017). In this book, she explains relevant legal topics to help readers to understand how judges might approach a case, while also considering how cultural perspectives, cognitive biases, and points of view impact negotiations, alternative dispute resolutions, and decision-making processes.
Internationally known as a pioneer in the practice area of animal law, Ms. Gislason received the Outstanding Recognition Award for Laying the Foundation for the Success of the Animal Law Committee and Its Mission to Create a Just World for All from the American Bar Association (ABA) Tort Trial & Insurance Practice Section (TIPS). After launching animal law in the professional bar of her home state of Minnesota, Ms. Gislason brought animal law to the national bar. She became the mother of animal law in the ABA. Through TIPS, she was able to found and lead the TIPS Animal Law Committee (ALC) and gather and retain the best and brightest animal lawyers from four continents. www.gislasonlaw.comPublished on: