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In a Divorce Who Gets Custody of the Dog?

Many judges treat dogs as property in divorce cases, but they are much more.

Creative Commons License CC0
Source: Creative Commons License CC0

It was a contentious divorce. The couple disputed the care and custody of a dependent known in the court papers only as “Baby.” According to New York lawyer Patricia Rouse, proceedings nearly ground to a halt when the judge asked for more information about “Baby,” only to find that the court was being called upon to settle a custody dispute over a four-year-old German Shepherd.

In our society, dogs are often viewed as children. We buy them toys, worry about their schooling and manners, and even talk to them in the same sing-song tones that we use when speaking to babies and young children. Research shows that in 38 percent of divorce proceedings involving dog owners, neither party wanted to give up their four-legged "child.” This has caused a legal crisis, since according to the law in most jurisdictions, a dog is merely property and is to be considered much like furniture or real estate. This means that, in divorce proceedings, courts are only supposed to concern themselves with the ownership and monetary value of a dog. Recently a number of American states, notably California, Alaska, and Illinois, have sought to change this.

The first deviation from the idea that dogs are merely property came in 1942, in a Chicago divorce court. Ruth Schiller traveled 1,500 miles from her new home in Florida to plead her motion for custody of Kiddo, a black Cocker Spaniel. Her husband asked for the dog as well. Judge Joseph Sabath startled the legal world when he awarded the Schillers joint custody, specifying that each should have the dog for six months of the year.

It seems as though California is always willing to take the lead in expanding social jurisprudence. Thus in 1983, California State Judge John Wooley went even further. After a year of bitter divorce proceedings, Rex and Judi Wheatland were still battling over Runaway, a two-year-old Cockapoo. Rex offered $20,000 for Judi’s “share” of Runaway but she refused his offer, saying, “She’s my baby. I wouldn’t give her up for anything.”

During the trial, Mr. Wheatland testified that “Runaway was the nucleus of our family,” and, to bolster this claim, he brought some of Runaway ’s toys to court, including a rubber hamburger and rubber hot dog. In addition, he brought a portrait that he had painted of Runaway.

Judge Wooley granted joint custody to Rex and Judi, which was not a surprise, since it was already becoming an accepted practice. What was a surprise was his reasoning. The judge maintained that “as a child substitute,” Runaway’s case had to be dealt with “in accordance with California’s child custody laws.”

The treatment of dogs involved in divorce settlements is becoming ever more like that of children. Thus, when Michael Fore and Sheila Mathews of Hennepin County, Minnesota, finalized their divorce, they were supposed to share custody of their Golden Retriever, Rudy. When Fore did not return Rudy after his scheduled visit, Mathews went to court seeking immediate “emergency relief.” She went on to justify this by noting in her request: “I do not wish to go any length of time without my pet.” The judge did not laugh this request out of court, but rather responded in the same way that he would to a failure to return a child from a scheduled visitation. He ordered the sheriff’s office to send a deputy to “enforce the custody order” and return Rudy to Mathews.

Even the pattern of decisions about custody of dogs seems to mimic the pattern associated with child custody. Just as in the case of human children, judges seem predisposed to grant custody to the woman, with 81 percent of the rulings going in favor of the former wife. Furthermore, when women won custody of the dog, their former spouses were granted visiting rights in a meager 11 percent of the cases. In those rare cases where the man was granted custody of the dog, however, the ex-wife was granted visitation rights in 83 percent of the proceedings. When dependent children are involved, the custody of the dog is usually awarded to the parent who gets custody of the children.

Most typically, however, the people who get involved in dog custody cases are essentially childless—often young couples who have not had children or older couples whose children have grown up and left home. Usually, they are reasonably well off, with enough money to spoil their pet with gifts and fancy treats, and dress them up with cute outfits like children or buy them fancy accessories—which means that they also have the available funds to mount a dog custody case. One Vancouver lawyer shook his head and mused about this when we were having lunch one day. He said, “They’re paying me $400 an hour to fight over a pet. Think about it. Does it make any sense? Either they are doing it simply to spite their partner, or is it possible that they really do think of their pets as children?”

In many cases, judges seem to be making decisions for awarding custody of dogs based on the same criteria for that would be used to determine the custody of children. For example, in Newport Beach, California, a judge awarded custody of two Rottweilers, Guinness and Roxi, not on the basis of which person had the more valid claim of ownership, but rather according to “what was best for the dogs.”

In 2002, in San Diego, Stanley and Linda Perkins disputed the custody of Gigi, a Pointer-Greyhound cross. They submitted themselves and the dog to “bonding” tests, during which animal behaviorist Dr. Lynn Wilson watched them interact with the dog, looked at which person the dog stayed closest to or followed. The wife’s lawyers even presented a specially produced A Day in the Life of Gigi video, which showed the dog playing at the beach, out on a walk, and at rest under Linda’s desk. Nearly half the three-day divorce trial involved arguments over Gigi. In total, legal fees amounted to over $200,000. In the end, Linda won full custody of Gigi and Stanley went to the animal shelter and adopted another Pointer cross, named Amy.

The idea of a “bonding” test was picked up by a St. Louis judge in the case of custody of a mixed-breed dog. The judge wanted to know which member of the divorcing couple the dog had most strongly bonded with. Both parties were ordered to stand on opposite sides of the court and call the dog at the same time. The plan was to award the dog to the person the dog went to. Instead, the poor dog became so confused that it ended up going to the judge.

In all such cases, a lot of discretion is left to the judges—some of whom still view dogs as property. Thus, in 2002, a Pennsylvania appeals court dismissed an application for visiting rights to a dog named Barney because it was “analogous, in law, to a visitation schedule for a table or a lamp.”

Given these contrary aspects of the law, a bill was introduced by California Assembly Member Bill Quirk. The bill sought to give pets more consideration and in so doing elevated their status past that of just "community property." It allows people to petition for sole or joint custody of their pet and requires the court to evaluate who cares for the pet, shelters it and so forth. California Governor Jerry Brown signed the bill and it will go into effect on January 1, 2019. Assembly Member Quirk noted that "By providing clear direction courts will award custody on what is best for the animal."

Even in the absence of specific legislation, some judges in other venues have tried to work out equitable and fair solutions to the complex question of who gets the family dog when the marriage falls apart. Thus Judge Michael Pincus of Maryland was faced with such a problem when Ethan Assam and Jennifer Kidwell were battling over a Keeshond named Sable. They appeared in his court two years after their divorce. As part of the settlement worked out by their lawyers, Kidwell had been granted custody of Sable, while Assam had visitation rights. Kidwell decided that she wanted exclusive possession of Sable and refused to grant Assam access to the dog.

Judge Pincus was not amused and told them, “In divorce cases, a judge can order that any property in dispute be sold and the proceeds divided between the warring couple. That will be the fate of Sable if Ms. Kidwell and Mr. Assam fail to live up to the terms of the divorce settlement in the future.” Faced with this prospect, Kidwell and Assam took less than an hour to settle their dispute with an agreement to share time with Sable.

I think that my perceptive readers can recognize that this solution was not based upon legislation but was an application of King Solomon's technique of settling a child custody dispute, only modified and applied to the custody of a dog.

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