Pets in Divorce: Family Conflict over Animal Custody
American Journal of Family Law, Vol. 26, p. 227, Winter 2013
7 Pages Posted: 17 Nov 2012
Date Written: 2012
Largely neglected in the family law literature, but the frequent subject of dispute in divorce controversies, are cases involving claims over “custody” of animals. Such disputes over pets in divorce proceedings are some of the most contentious in the family law field. While law schools are increasingly offering courses involving the emerging law of animal rights, and law reviews are devoted to the subject, family law controversies over custody, visitation and/or support of animals when the human family is dissolving does not draw much attention from the bar, judiciary or legal academy. This may be due to the attitude of many family court judges that disputes over pets are simply a matter of property division law and do not create the need for legal analysis. But in reality this may neglect the common view of many divorcing couples that a pet is something more than mere property such as an automobile, a pension or a house. This article reviews the various views taken by the court on disposition of dogs, cats, gold fish etc. While not fully analogous, the author reviews cases such as damage claims in tort cases where a pet has been harmed, injured or killed. Are such damages to be measured simply as property injuries or by the harm done to a human being by loss of his or her animal companion? While a divorce does not involve tort damages, it does raise questions as to how courts should resolve family disputes over pets. Among the possibilities discussed by the author are the use of personal property division policies (the most common approach), a standard which employs a companionate standard which views pets not as property but human companions, and even a possible evolving standard which looks to the best interests of the pet itself. There are all sorts of variation on each of these three approaches. The author notes that while some animal advocates may prefer an analysis which focuses on the welfare of the animal itself, the courts are very unlikely to adopt a “best interests” standard such as that used in child custody disputes.
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