Friday, February 2, 2007

Pets and Divorce

In Hollywood, its no secret that the truth can be stranger than fiction when famous couples head for divorce court. In most recent headlines, the divorce of Marilyn Manson and Dita Von Teese is no exception. They are reportedly fighting over custody of their two cats and two dachshunds. Oddly enough, the custody battle between Manson and Von Teese is not unusual. In fact, if you were to poll divorce attorneys, I'm sure that a majority of them would tell you that more and more people are discussing custody arrangements with respect to their pets. While this may cause Judges to snicker and generate good reading for your local newspaper, it is a reality that people are emotionally attached to their pets. When a couple is litigating custody of their children, the best interests of the child is almost always the standard. Most states consider pets to be nothing more than property and rarely do Judges put a custody plan in place to deal with bickering pet lovers. What happens when a couple can't agree to who gets the family pooch? While I have not come across this yet in my own practice, I'm sure that sometime in the future I will be trying to figure out an amicable way to answer this question.

There are a number of different stories regarding pet custody battles. The most interesting one I found on a Blog that came from a stroy publsihed on the Hartford Courant.

Thanks to the San Francisco Family Law Blog for posting regarding the following newspaper article by Jane Porter of the Hartford Courant:

Gaetano Ferro, a divorce lawyer, remembers an unusual case from a decade ago. It involved a custody dispute over a springer spaniel.
What Ferro remembers most are the snickering judges in the courthouse. And he recalls that the couple finally decided the dog would spend alternate weeks with each owner.
Such a case would be less unusual, and probably less funny, today. Nearly a quarter of divorce lawyers surveyed across the U.S. have noticed an increase in pet-custody cases in the past five years, according to a recent poll of 1,500 members of the American Academy of Matrimonial Lawyers.
"There is a shift occurring in our society in which the ... pet is considered more a member of the family ... and therefore becomes, sadly, a part of the battle when the family disintegrates," said Joyce Tischler, founding director of the Animal Legal Defense Fund, a nonprofit organization based in Northern California.
A 2004 survey found that 56 percent of pet owners would very likely risk their own lives for their pet, and 53 percent spend more now on their pet than they did three years ago. A 2001 survey by the same group, the American Animal Hospital Association, found that 83 percent of pet owners refer to themselves as their pet's "mom" or "dad."
That relationship is not acknowledged by the courts, where pets are still considered "property," no different from the silverware, the plasma TV and the living-room sofa.
"In America, pets are basically chattel," said Monica Harper, a matrimonial lawyer in Hartford, Conn.
As a result, many judges find fighting over pets a waste of court time, and attorneys counsel their clients to settle such disputes on their own. The matrimonial lawyers' survey found that 90 percent of the pet-custody battles were about dogs.
To Ferro, disputing who gets the cat or dog is like shooting a mosquito with an elephant gun.
But for many divorcing couples, the pet is like their child. To help judges consider the well-being of animals involved in such cases, the Animal Legal Defense Fund developed a friend-of-the-court brief five years ago.
The 18-page brief is intended to show judges that "there is an unnamed third party in a custody case," Tischler said. "There is a distinction in the dog or cat's mind -- believe it or not -- as to who tends to be closer," she said of the relationship between pet and owners.
The brief makes clear that the animal's interests should not be left out in such cases.
Generally, pets stay in the home where children primarily live, said Thomas Colin, chair of the Connecticut Bar Association's Family Law Section. But when the splitting couple does not have children, the issue becomes more complicated.
During his first 10 years practicing as a matrimonial lawyer, Colin had never encountered a pet-custody issue. But just last year, he worked on two custody disputes involving dogs. In both cases, the divorcing couples did not have children. Deciding who was granted custody of the pets meant digging up registration certificates, determining who was responsible for taking care of the animals and who had more of an attachment, he said.
When Colin was a student at St. John's University law school in the early 1990s, pet custody wasn't an issue. Today, universities around the country examine such issues in courses focused entirely on animal law.
"It's becoming a hotter area of the law, just measuring by the ... mail I get," Colin said, recalling a recent flier for a full-day seminar on animal legal issues.
"When this first came up, I said, `This can't be that big of a deal because it's just a pet,"' he said. "But what I learned is ... in the lives of these people going through emotional divorces, this is a very real thing, and it should be taken seriously."

Source: "Pet Disputes in a Divorce Can Be a Dog Fight" by Jane Porter of the Hartford Courant.

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