Custody of Pets
Is it possible to obtain custody orders in the Family Court for your pets?
In Australia the law is quite clear. Pets are simply property no different to furniture and are treated accordingly. The Family Court does not award custody of pets.
But is the law changing? A review of cases from overseas and a recent Queensland case may provide some guidance.
USA
In the 1994 Florida case of Bennett v Bennett, the Court found that animals were simply property and that the Court had no authority to grant contact or residence rights in relation to pets. The Court said Our Courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.
In a 1994 Texas case Judge Andell said:
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
In a San Diego Superior Court, Dr Stanley Perkins and his wife Linda Perkins spent a fortune on a custody battle over Gigi - the Pointer – Greyhound mix dog that the couple had adopted from a local shelter. The battle lasted 2 years and cost the childless couple a significant amount of money in legal fees and a ‘canine bonding’ study designed to determine who was the better carer for their beloved Gigi.
The couple married in 1994 a few days after one of Stanley’s dogs had killed one of his fiancée’s cats. The couple immediately gave the dog away and Stanley’s second dog died a year later. It was then that the husband decided he wanted another dog. The couple acquired Gigi at an animal shelter in 1996 and 2 years later the couple filed for divorce with custody of Gigi being a major issue. The husband argued that he should keep Gigi because the dog had been a gift from his wife to replace his other dog. The wife on the other hand insisted that the dog had been a joint acquisition.
In May 1998, Superior Court Judge Thomas Ashworth granted temporary custody to the husband and weekend visitations to the wife. He also told them to feel free to consult any experts who might help him make a final ruling.
Eventually, the parties felt that the temporary arrangement had taken a toll on Gigi’s psychological wellbeing and so they took the Judge up on his offer and agreed to consult an animal behaviourist to conduct a ‘bonding study’ to determine with whom Gigi had a greater emotional affinity to. Based on the expert report’s recommendations that the wife should have primary custody of the dog because she worked at home and her neighbourhood was safer for pets, the wife was granted temporary custody and the husband was granted weekend visitation rights.
The parties then decided that the arrangement was unsatisfactory because it was taking a psychological toll on Gigi and they decided that one of them should have permanent custody.
At trial, the Court was shown a video by the wife’s divorce lawyers, which was in effect a ‘day in the life of Gigi’ video. It showed Gigi sleeping under the wife’s desk while at work, the wife taking Gigi for walks in the park and Gigi playing in the beach. The divorce trial lasted 3 days and almost 50% of the trial was spent on the custody issue of Gigi. The court awarded permanent custody to the wife.
In a 1979 New York case the Court said that:
…This court holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property…To say it is a piece of personal property and no more is a repudiation of our humanness. This I cannot accept.
In a further case in 2005 in a veterinary’s office in Los Angeles, a wife and her husband were engaged in a dispute as to the Pomeranian which they bought together while married. The wife insisted that she fed the dog and the husband insisted that he walked the dog. With their respective divorce lawyers they sat on opposite corners to determine which of them was to retain custody of the dog.
As the veterinarian brought the dog in, both parties begin calling to the dog. Eventually, after some hesitation, the dog bounded over to the wife and so the dispute was settled with the wife being awarded full custody of the dog. In return she paid $1,200 (US) compensation to her ex–husband.
Canada
In 2004 the Court ordered a man to give his ex–wife monthly support payments for their dog – “petimony”.
Kenneth Duncan, a truck driver in Edmonton, was ordered to pay $200 per month towards the maintenance of Crunchy, a St Bernard. Kenneth had proposed paying $25 per month but Alberta Justice Donald Lee rejected this on the grounds that the feeding needs of a 4 year old St Bernard would be significantly greater than $25 per month.
This was the very first time in Canada that the status of a dog had been elevated above that of an ordinary piece of property.
UK
Lynn Goldstein Nichols did not want to be separated from her cats and dogs. When the Court decided that her husband should keep their 2 cats and she should keep the 3 dogs, Lynn appealed. Lynn pointed out to the Court that 1 of the cats and her dogs were close friends and that they pinned terribly for each other when apart.
However in the end, the Court awarded custody of the cats to her husband.
Lynn did not want her husband a pilot, to get the cats. Every time her husband came to get the cats, Lynn would say that the cats had runaway. Her husband hired a private detective who videotaped her taking the cats to a friend’s house just prior to when he was about to arrive to collect them. The Judge sentenced her to 30 days jail for disobeying an order as to the custody of the cats.
Queensland
In the case of Rogers v O’Farrell the parties had a dispute over the custody of a purebred and a cross Jack Russell. O’Farrell had had custody of the dogs for about 2 years, following the separation between the parties.
The Judge was inclined to allow the dog to remain with O’Farrell given that was where the dog had been for the past 2 years. In addition, Rogers was willing to provide O’Farrell with copies of all photographs in issue, so long as O’Farrell paid for the cost of making copies of the photographs in exchange for her keeping the dogs. O’Farrell agreed to this and so the Judge decided that the dogs should remain with O’Farrell.
The Future
Clearly countries are recognising the irony of a situation which classifies pets as being no different to a piece of furniture and yet are protected by anti–cruelty laws. Given that pets are often classified as mere property, it is no wonder that arguably some Judges feel that to arrange joint custody for a pet is analogous to creating a visitation schedule for a piece of furniture.
Yet pets are live beings capable of experiencing cruelty and mistreatment in a way that furniture is not. Furthermore, while Courts may endeavour to respect the dying wishes of a pet guardian, they are unlikely to uphold the wish that the pet be euthanased in favour of preserving and upholding the best interests of the pet especially if the animal is well. It is not surprising that legally the tide as to custody of pets seems to be turning. It may well become the norm for separating couples to dispute the ownership of pets and ask the court to rule on the issue
By Samantha Gomez
1 April 2005
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