Fighting over Fido: Pets in Divorce

In one of the earliest cases to address the issue of companion pets in a divorce, an Indiana appellate court articulated the confusion about how pets should be treated. In that case, the husband brought an action in replevin against the wife for possession of the dog, but the appellate court found that there was evidence that the husband had given the dog to the wife, and thus denied the husband's action. The court noted that the issue of whether the trial court should have addressed custody of the parties' dog as part of the divorce case was not before it. However, the court noted that if the issue had been before it, the question “whether the interests and desires of the dog, in such a situation, would be the polar star pointing the way to a just and wise decision, or whether the matter should be determined on the brutal and unfeeling basis of legal title, is a problem concerning which we express no opinion.” Akers v. Sellers, 54 N.E.2d 779 (Ind. Ct. App. 1944).

In the Pet's Best Interest

Some courts have looked to a pet's best interest in determining to whom custody should be awarded.

In Raymond v. Lachmann, 264 A.D.2d 340 (N.Y. App. Div. 1999), a New York appellate case involving the disposition of a cat, “Lovey,” between two roommates, the court noted that it was “cognizant of the cherished status accorded to pets and the strong emotions engendered by disputes of this nature,” and found that given Lovey's limited life expectancy due to his advanced age, the cat should remain where he had “lived, prospered, loved and been loved for the past 4 years.” See also Meehan v. Sterba, No. 23168/88 (N.Y. Sup. Ct.) (awarding custody of dog to wife after determining that dog had always been given loving care by the wife, and rejecting husband's request for joint custody as impractical).

In In re Stewart, 356 N.W.2d 611 (Iowa Ct. App. 1984), although the appellate court stated that it was not going to consider the dog's best interest in determining to whom custody of the dog should be awarded, it upheld the trial court's award of custody of the dog to the husband. The court noted that although the husband had given the wife the dog as a Christmas present, once the parties separated, the dog remained with the husband, accompanied him to work, and spent a substantial portion of the day with him. See also Pastore v. Pastore, 1999 Conn. Super. LEXIS 2821 (Conn. Super. Ct. 10/20/99) (the appellate court ruled that any disputes concerning personal property distribution and pets would be referred to the Family Relations Office for mediation); Zovko v. Gregory, No. CH 97-544 (Va. Cir. Ct., Arlington Cty., 10/17/97) (case decided on cat's best interests).

Are Pets Like Lamps?

Other courts have refused to recognize the unique character of pets and have simply distributed them as any other inanimate marital property. As the court stated bluntly in Arrington v. Arrington, 613 S.W.2d 565 (Tex. App. 1981), “A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law.” In a recent Florida case, Bennett v. Bennett, 655 So.2d 109 (Fl. Dist. Ct. App. 1995), the trial court awarded custody of the parties' dog, “Roddy,” to the husband, and awarded the wife visitation with the dog every other weekend and every other Christmas.

On appeal, the appellate court held that the trial court lacked the authority to order visitation with personal property, and that the dog should have been dealt with through the equitable distribution process. The court declared, “While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property, and there is no authority for a court to grant custody or visitation pertaining to personal property.” The court also noted that determinations as to custody and visitation of pets lead to continuing enforcement and supervision problems, and the courts, already overwhelmed by ruling on the custody and visitation of children, simply could not undertake the same responsibility as to animals. See also Pratt v. Pratt, No. C4-88-1248, 1998 Minn. App. LEXIS 1113 (Minn. Ct. App. 1988) (noting that best-interest standard does not apply to companion pets).

A recent Pennsylvania appellate case, DeSanctis v. Pritchard, 803 A.2d 230 (Pa. Super. 2002), took the pets-as-personal-property school of thought one step further when it invalidated a marital settlement agreement entered into by the parties that primarily related to the shared custody of the parties' dog, “Barney.” The agreement provided that Barney was the property of the wife and that she was to have “full custody” of the dog, but that Barney would be made available for visitation with the husband. The wife moved, so Barney was no longer available for visits. The husband filed an action to enforce the agreement. The court commented that in seeking “shared custody” and a “visitation” arrangement, the parties “appear[ed] to treat Barney, a dog, as a child. Despite the status owners bestow on their pets, Pennsylvania law considers dogs to be personal property.” The court found that the terms of the agreement were void to the extent that they attempted to award visitation with or shared custody of personal property. The court concluded that the husband was seeking “an arrangement analogous, in law, to a visitation schedule for a table or a lamp,” an agreement that would not be enforceable.

Animal Behavior Experts

Some divorce litigants will go to amazing lengths to win custody of a pet. In the case of Perkins v. Perkins out of San Diego, CA, as reported by www.petcustody.com (visited April 6), the parties engaged in a vicious custody battle over their dog, “Gigi.” The litigation lasted over 2 years, and the parties spent thousands of dollars on the issue, including consulting with an expert and paying for a “canine bonding study.” The husband claimed that Gigi had been a gift to him from his wife, while the wife alleged that the dog had been a joint acquisition. As proof of her relationship with Gigi, the wife offered into evidence a birthday card addressed to herself as “Mom” and signed “Love, Gigi.” A judge awarded temporary custody of Gigi to the husband, with the wife having visitation with the dog. The husband alleged that this was not in Gigi's best interest because Gigi and the wife's cat, Muffin, were “natural enemies.”

The parties consulted with an animal behavior expert, who conducted a study to determine how well the dog had bonded with each party. The expert studied the dog's walks, eating habits and sleeping arrangements with each party. A minor controversy arose when it was discovered that the husband had consulted with another expert, known as “Dr. Dog,” to prepare for his interview with the animal behavior expert. Based on the expert's recommendation, the wife was awarded custody of Gigi, with the husband having visitation. Eventually, however, the parties determined that their joint custody of Gigi was taking a psychological toll on her, and they determined it was not in the dog's best interest to be shuttled back and forth between them. After a 3-day divorce trial, half of which was spent on the issue of Gigi, according to a lawyer involved in the case, the wife was awarded permanent custody of the dog.

Divorce and Pet Abuse

The issue of how animals should be treated in the context of divorce is by no means limited to just custody/visitation. For example, if courts do begin awarding custody and/or visitation of pets, should a pet also be entitled to support from the non-custodial “parent”? On a more serious note, pets can also be involved in abusive situations. In cases where a spouse abuses the other spouse or children, animals in the household may also be abused. For example, a man in Wisconsin stabbed and/or decapitated eight of his wife's pets (including birds, snakes and a chinchilla) to punish her for having an abortion. State v. Kritz, No. 99CF000152 (Wis. Cir. Ct., Washington Cty.). In some cases, where abused spouses seek protective orders to prevent the abuser from coming within a certain distance, victims and courts are beginning to include pets in the requests. See Dianna J. Gentry, Including Companion Animals in Protective Orders: Curtailing the Reach of Domestic Violence, 13 Yale. J. Law & Feminism 97 (2001).

Courts and legislatures are increasingly finding that the unique character of companion animals sets them apart from inanimate property in other contexts outside of domestic relations. In the area of probate law, courts have increasingly begun to enforce will and trust provisions providing for pets on the death of the owner. Anti-cruelty statues provide another example of the special status afforded animals in our society.

Conclusion

Clearly, the issue of the disposition of companion animals on divorce is one that is becoming increasingly prevalent. While some courts recognize the unique character of pets and look to the best interest of the pet in awarding possession, other courts refuse to view pets as anything but personal property, and simply award a pet as part of property distribution, without allowing for any type of visitation or shared custody. Regardless of whether pet owners live in a state in which parties spend thousands of dollars, hire experts and hold trials regarding the possession of animals – or, states that won't even enforce private agreements — pet owners should be aware of the risks divorce poses to their relationship with their animals.

Courts may need to be made aware of American culture's growing view that people consider their pets to be far more than simple personal property. As one court wrote in Bueckner v. Hamel, 886 S.W.2d 368, 378 (Tex. App. 1994), “The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.”

Albert Momjian, Esq., co-chairs the Family Law Department at the Philadelphia law firm Schnader Harrison Segal & Lewis, LLP. Meredith Brennan is an associate in the firm's Family Law Department.

Your spouse, your children and your beloved pets have lived together as a family for the last 10 years, but one of you has now filed for divorce. Who gets the kids? Who gets the wedding china? Who gets Fido? Obviously, every court in the country treats the custody of children differently than personal property. So where do pets fit in? Should companion animals be treated akin to children and custody/visitation determined by looking at the pets' best interest, or are companion animals no more than personal property to be distributed like pots and pans on divorce?

While animals are generally considered property for legal purposes, in the context of divorce, some courts have concluded that the unique character of companion animals sets them apart from “personal property,” entitling them to consideration of their best interests in determining with whom the animal should live.

Statistics alone reveal the importance of companion animals to American families (See 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).

• In the United States, there is nearly one pet for every two people.
• Approximately 124 million dogs and cats live in American households.
• In one study, 45% of dog owners reported that they take their pets on vacation.
• A recent survey revealed that more than half of companion-animal owners would prefer a dog or a cat to a human if they were stranded on a deserted island.
• Another poll revealed that 50% of pet owners would be “very likely” to risk their lives to save their pets.

In the context of divorce, courts are increasingly faced with the dilemma of how to treat pets. Courts across the country have come out differently on the issue. Some courts recognize pets' unique character and have awarded custody and/or visitation of pets between parties on their divorce, while other courts have refused to treat pets as anything other than personal property to be distributed. Pennsylvania's appellate court has gone so far as to invalidate a property settlement agreement between a husband and wife providing for shared possession of the parties' dog. DeSanctis v. Pritchard , 803 A.2d 230 (Pa. Super. 2002).

In one of the earliest cases to address the issue of companion pets in a divorce, an Indiana appellate court articulated the confusion about how pets should be treated. In that case, the husband brought an action in replevin against the wife for possession of the dog, but the appellate court found that there was evidence that the husband had given the dog to the wife, and thus denied the husband's action. The court noted that the issue of whether the trial court should have addressed custody of the parties' dog as part of the divorce case was not before it. However, the court noted that if the issue had been before it, the question “whether the interests and desires of the dog, in such a situation, would be the polar star pointing the way to a just and wise decision, or whether the matter should be determined on the brutal and unfeeling basis of legal title, is a problem concerning which we express no opinion.” Akers v. Sellers , 54 N.E.2d 779 (Ind. Ct. App. 1944).

In the Pet's Best Interest

Some courts have looked to a pet's best interest in determining to whom custody should be awarded.

In Raymond v. Lachmann , 264 A.D.2d 340 (N.Y. App. Div. 1999), a New York appellate case involving the disposition of a cat, “Lovey,” between two roommates, the court noted that it was “cognizant of the cherished status accorded to pets and the strong emotions engendered by disputes of this nature,” and found that given Lovey's limited life expectancy due to his advanced age, the cat should remain where he had “lived, prospered, loved and been loved for the past 4 years.” See also Meehan v. Sterba, No. 23168/88 (N.Y. Sup. Ct.) (awarding custody of dog to wife after determining that dog had always been given loving care by the wife, and rejecting husband's request for joint custody as impractical).

In In re Stewart, 356 N.W.2d 611 (Iowa Ct. App. 1984), although the appellate court stated that it was not going to consider the dog's best interest in determining to whom custody of the dog should be awarded, it upheld the trial court's award of custody of the dog to the husband. The court noted that although the husband had given the wife the dog as a Christmas present, once the parties separated, the dog remained with the husband, accompanied him to work, and spent a substantial portion of the day with him. See also Pastore v. Pastore, 1999 Conn. Super. LEXIS 2821 (Conn. Super. Ct. 10/20/99) (the appellate court ruled that any disputes concerning personal property distribution and pets would be referred to the Family Relations Office for mediation); Zovko v. Gregory, No. CH 97-544 (Va. Cir. Ct., Arlington Cty., 10/17/97) (case decided on cat's best interests).

Are Pets Like Lamps?

Other courts have refused to recognize the unique character of pets and have simply distributed them as any other inanimate marital property. As the court stated bluntly in Arrington v. Arrington , 613 S.W.2d 565 (Tex. App. 1981), “A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law.” In a recent Florida case, Bennett v. Bennett , 655 So.2d 109 (Fl. Dist. Ct. App. 1995), the trial court awarded custody of the parties' dog, “Roddy,” to the husband, and awarded the wife visitation with the dog every other weekend and every other Christmas.

On appeal, the appellate court held that the trial court lacked the authority to order visitation with personal property, and that the dog should have been dealt with through the equitable distribution process. The court declared, “While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property, and there is no authority for a court to grant custody or visitation pertaining to personal property.” The court also noted that determinations as to custody and visitation of pets lead to continuing enforcement and supervision problems, and the courts, already overwhelmed by ruling on the custody and visitation of children, simply could not undertake the same responsibility as to animals. See also Pratt v. Pratt, No. C4-88-1248, 1998 Minn. App. LEXIS 1113 (Minn. Ct. App. 1988) (noting that best-interest standard does not apply to companion pets).

A recent Pennsylvania appellate case, DeSanctis v. Pritchard , 803 A.2d 230 (Pa. Super. 2002), took the pets-as-personal-property school of thought one step further when it invalidated a marital settlement agreement entered into by the parties that primarily related to the shared custody of the parties' dog, “Barney.” The agreement provided that Barney was the property of the wife and that she was to have “full custody” of the dog, but that Barney would be made available for visitation with the husband. The wife moved, so Barney was no longer available for visits. The husband filed an action to enforce the agreement. The court commented that in seeking “shared custody” and a “visitation” arrangement, the parties “appear[ed] to treat Barney, a dog, as a child. Despite the status owners bestow on their pets, Pennsylvania law considers dogs to be personal property.” The court found that the terms of the agreement were void to the extent that they attempted to award visitation with or shared custody of personal property. The court concluded that the husband was seeking “an arrangement analogous, in law, to a visitation schedule for a table or a lamp,” an agreement that would not be enforceable.

Animal Behavior Experts

Some divorce litigants will go to amazing lengths to win custody of a pet. In the case of Perkins v. Perkins out of San Diego, CA, as reported by www.petcustody.com (visited April 6), the parties engaged in a vicious custody battle over their dog, “Gigi.” The litigation lasted over 2 years, and the parties spent thousands of dollars on the issue, including consulting with an expert and paying for a “canine bonding study.” The husband claimed that Gigi had been a gift to him from his wife, while the wife alleged that the dog had been a joint acquisition. As proof of her relationship with Gigi, the wife offered into evidence a birthday card addressed to herself as “Mom” and signed “Love, Gigi.” A judge awarded temporary custody of Gigi to the husband, with the wife having visitation with the dog. The husband alleged that this was not in Gigi's best interest because Gigi and the wife's cat, Muffin, were “natural enemies.”

The parties consulted with an animal behavior expert, who conducted a study to determine how well the dog had bonded with each party. The expert studied the dog's walks, eating habits and sleeping arrangements with each party. A minor controversy arose when it was discovered that the husband had consulted with another expert, known as “Dr. Dog,” to prepare for his interview with the animal behavior expert. Based on the expert's recommendation, the wife was awarded custody of Gigi, with the husband having visitation. Eventually, however, the parties determined that their joint custody of Gigi was taking a psychological toll on her, and they determined it was not in the dog's best interest to be shuttled back and forth between them. After a 3-day divorce trial, half of which was spent on the issue of Gigi, according to a lawyer involved in the case, the wife was awarded permanent custody of the dog.

Divorce and Pet Abuse

The issue of how animals should be treated in the context of divorce is by no means limited to just custody/visitation. For example, if courts do begin awarding custody and/or visitation of pets, should a pet also be entitled to support from the non-custodial “parent”? On a more serious note, pets can also be involved in abusive situations. In cases where a spouse abuses the other spouse or children, animals in the household may also be abused. For example, a man in Wisconsin stabbed and/or decapitated eight of his wife's pets (including birds, snakes and a chinchilla) to punish her for having an abortion. State v. Kritz, No. 99CF000152 (Wis. Cir. Ct., Washington Cty.). In some cases, where abused spouses seek protective orders to prevent the abuser from coming within a certain distance, victims and courts are beginning to include pets in the requests. See Dianna J. Gentry, Including Companion Animals in Protective Orders: Curtailing the Reach of Domestic Violence, 13 Yale. J. Law & Feminism 97 (2001).

Courts and legislatures are increasingly finding that the unique character of companion animals sets them apart from inanimate property in other contexts outside of domestic relations. In the area of probate law, courts have increasingly begun to enforce will and trust provisions providing for pets on the death of the owner. Anti-cruelty statues provide another example of the special status afforded animals in our society.

Conclusion

Clearly, the issue of the disposition of companion animals on divorce is one that is becoming increasingly prevalent. While some courts recognize the unique character of pets and look to the best interest of the pet in awarding possession, other courts refuse to view pets as anything but personal property, and simply award a pet as part of property distribution, without allowing for any type of visitation or shared custody. Regardless of whether pet owners live in a state in which parties spend thousands of dollars, hire experts and hold trials regarding the possession of animals – or, states that won't even enforce private agreements — pet owners should be aware of the risks divorce poses to their relationship with their animals.

Courts may need to be made aware of American culture's growing view that people consider their pets to be far more than simple personal property. As one court wrote in Bueckner v. Hamel , 886 S.W.2d 368, 378 (Tex. App. 1994), “The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.”

Albert Momjian, Esq., co-chairs the Family Law Department at the Philadelphia law firm Schnader Harrison Segal & Lewis, LLP. Meredith Brennan is an associate in the firm's Family Law Department.