Dogs & Divorce

Dogs & Divorce

Being a family law attorney, I often get asked, “do you have children?”  And whether it’s to a client or fellow attorney, my reply often gets sneered at.  I have since changed my response.

“I do not have children, but I do have a dog and I believe I would fight just as hard over my dog as you are over your child.” 

How Family Law Treats Dogs in a Divorce Across the U.S. 

Under common law, dogs are property.  Taking them without consent of the owner can be a criminal offense.  However, under property law, a dog is no different than your everyday couch.   For centuries, the law has treated pets as property and not as “people”.

The Texas Supreme Court recently emphasized a 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.  Meaning, the only damages a court can award 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).

The law is no different when it comes to divorces.  Your dog is put into the same category as other marital property, gets divided with the marital assets, and no regard is given to which party has what relationship with the dog or which party may love the dog more.  There is no requirement for the family court to take into account what is in the best interest of the dog when deciding where dog shall live post-divorce.  

Science Confirms that Dogs and their Humans Form Strong Familial Bonds

Science has confirmed a couple of things:

  • Unlike your everyday couch, dogs are alive; and

  • Perhaps akin to some couches, but far more often and more uniformly, people form emotional attachments with their dogs;

  • This emotional attachment is often a strong bond, resulting in grieving upon the loss of a dog, and fears that a dog may be mistreated or stray away;

  • 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 considered property.  Weirdly enough, 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 person is cruel to an animal, that person is subject to criminal charges, or worse, interruption of their career in the National Football League.  In other words, the state laws 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 divorce cases every year.  

Divorce law, in 47 states, remains unchanged.  No attempt has been made to impose a custody decision, nothing in South Carolina law prevents placing a dog with a divorcing party, at least in the absence of a history of dog fighting or a desire 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. 

Determining a Dog’s Best Interest 

While determining the best interests of the dog is not easy, and arguably not objectively possible, and while it would increase the investigative burden of our family courts, the burden I would imagine is not too different from what courts must do with children.  

The first instance of legal facade on dogs in divorce cases 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 heard evidence from an animal behavioralist and a video presentation, entitled “Day in the Life of Gigi.”  The video depicted scenes of Gigi sleeping under the wife’s chair and cuddling with her.  The wife was eventually awarded custody.  In making this decision, there was no legal principle revised nor is there an appellate decision to cite. 

In 2014, Vermont became the first state to visit its laws 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 called it yet, 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). 

The Hamet v. Baker case was not an easy case for the trial court to decide.  There was no evidence presented to the Court indicating any allegations of animal neglect or abuse, and no one presented a choice where one party was largely indifferent to the dog.  Fighting a case that involved no children, no property disputes, to the state’s Supreme Court, with the parties’ only point of contention being that both parties wanted to retain Belle, a German wire-haired pointer, arguably tells you, standing alone, the potential emotional attachment between human and dog.  

People are free to agree or disagree with 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 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. 

Pet Custody, Visitation, and Support

Further adjustments are likely needed.  There are still things that are unknown.  If a party’s agreement as to custody of the dog 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, P.2d 966 (Kan.App.1997) (declining to modify divorce decree that granted former husband right to visit what was formerly the family dog).  

As of now, 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.  The issue of whether shared custody arrangements will be tried is also unknown.  Right now, under Texas law, it is actually possible that there is court-ordered trading of possession of a television can be ordered.  Both, it bears repeating, are community property under the state’s law. 

In the past couple years, states have amended their state statutes to allow judges in divorce proceedings to consider the well-being of the pets when considering the custody-related issues in a case. 

Alaska and Illinois are two states that changed their statutes, meaning, it’s possible to be granted “custody” of the pets who were part of the family during the marriage.  Essentially, they are no longer looked upon as assets of the marriage. 

In Alaska, the law took effect in January 2017 and granted judges in divorce proceedings the ability to no longer take into account what’s best for the “humans” involved, but also to consider “the well being of the animal.”  The new law also allows the judge to grant ownership/custody of the pet.  

In Illinois, the new law took effect in January 2018 and similar to the law in Alaska, allowing a judge in a divorce proceeding to consider the well-being of a pet when considering granting sole or joint ownership/custody.  For judges in divorce proceedings in these states, the decision of which party receives custody of the pet is no longer as simple as granting it to one party or the other by simply looking at the best interests of the spouses.  Now, judges in divorce proceedings in Alaska and Illinois will have to consider the well-being of the pet, as well, and ultimately, what is in the “best interest” of the pet.

In 2013, a trial court in New York City found itself deciding a custody case over a miniature dachshund, Joey.  The spouses fighting over Joey presented evidence such as what 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, who who gets 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 the questions, but that court is not exactly known for its unwillingness to take bold steps.  

A media report of a Pulaski, Tennessee couple sets out the issue in a two-hour hearing to determine the placement of their dog, a divorcing couple maintained why they each deserved custody.  The wife argued that the dog enjoyed Bible study she conducted in her home and, therefore, should remain with her.  Husband argued the dog enjoyed riding on the back of his motorcycle and, therefore, should remain with him.  The judge ultimately ordered joint custody with stipulations that the dogs should not be forced to wear a helmet while riding the motorcycle and the dog should be allowed to continue to attend Bible study.  The judge additionally ordered no alcoholic beverages be consumed in the presence of the dog, and the dog not be allowed to consent with an “ill-bred or mongrel type dogs.”  

The above guidelines the Tennessee Court incorporated sound very much like restrictions in the custody and separation agreements I put into place for children in family cases.  

Currently, in South Carolina family courts, pets are not considered anything other than a part of the property of the marital estate.  Thus, when dividing property of the marriage based on our laws of “equitable apportionment”, the judge will consider the spouses and their wishes as to who should get custody of the pet but is not required to give consideration of the well-being of the pet.  Family court judges are generally compassionate and understand the trauma caused by splitting up a family.  Judges will often give consideration to things like which spouse works less, which spouse has better resources, and which spouse was the primary caretaker of the pet.  If there are human children involved in the case who are close to the family pets, it is not uncommon to see South Carolina family court judges to order the pet will “go with the child” assuming both parents have the ability to care for the pet during their parenting time. 

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, Assembly person Bill Quirck 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 extreme left states as one may assume.  Dogs are loved and understood by the conservatives as well.  In 2010, an Alabama appeals court rules 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 interests of Preston in determining that the mother was Preston’s true owner. 

How Family Law Treats Dogs in a Divorce; Times are Changing 

Some 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.  

Estate Planning After Divorce

Estate Planning After Divorce