Fighting Over Fido:

By RANDALL M. KESSLER

Divorce attorneys are used to dealing with custody disputes over children. In order to resolve any di- vorce proceeding when children are involved, the attorney has to address all issues of custody, including—but not limited to—which parent will have custody, where the child/children are going to live, child support and visitation. Often times parties are able to reach a settlement regarding how they are going to face sharing their child/children between two households. If they cannot come to such a settlement, then the court will ultimately make the final decision for them.

However, a growing issue that divorce attorneys are facing is how to deal with pets in a divorce action. Many pet owners view their pets as members of the family, and not just property. In fact, studies have revealed that more than seventy percent of pet owners consider their pet to be a member of the family.1 Because pet owners report that a variety of human emotions such as loyalty, trustworthiness, happiness and jealousy are evidenced in their dogs and cats, they are commonly humanized and are frequently regarded as family members. In ad- dition, many of the pet owners reported that their ani- mal is able to reciprocate their love.

Despite these reported feelings and beliefs, courts in many jurisdictions, including Georgia, are silent with respect to the custody of pets in contested divorce ac- tions. For example, the custody statutes in Georgia state in pertinent part the following:

§ 19-9-1 (a)(1) In all cases in which a divorce is granted, the party not in default shall be entitled to the custody of the minor children of the marriage. § 19-9-3 (a)(1) In all cases in which the custody of any minor child or children is at is- sue between the parents. . . (2) The court hearing the issue of custody, in exercise of its sound discretion, may take into consideration all of the circumstances of the case.

Georgia law further defines ‘‘joint legal custody􏰁 as both parents having equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training. ‘‘Sole custody” is defined as a person, including, but not limited to a parent, who has been awarded permanent custody of a child by a court order. See O.C.G.A. § 19- 9-6(2) and (4).

On the other hand, the law in Georgia considers pets as ‘‘property”. Therefore, in a divorce case, the courts to date have treated the pet as an ‘‘asset” and have awarded it to one party or the other, depending on the facts and circumstances of the case. Clearly this poses a practical problem when it involves two parties who view their pet as a member of the family and both de- sire custody and/or visitation with the family pet.

While there are few reported cases concerning the custody of pets, some jurisdictions have addressed the issue. Some courts have actually treated the pet at issue as if it was a child rather than property. The Alaska Su- preme Court, for example, in Juelfs v. Gough, 41 P. 3d 593 (Alaska 2002) upheld the lower court’s decision of awarding sole legal custody of the family’s Labrador Retriever to the husband because it was not safe at the wife’s residence due to the other dogs she had living with her.

A New York appellate court reversed a trial judge’s decision in a dispute between former roommates that had awarded the parties’ cat to the plaintiff under a straight property analysis. The appellate court awarded sole custody of the cat to the defendant, declaring that ‘‘[c]ognizant of the cherished status accorded to pets in our society, the strong emotions engendered by dis- putes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.’’ Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999).

Additionally, a Virginia court considered the best in- terests of the parties’ cat, a standard usually reserved for custody of children, and awarded custody of the cat to the non-owner roommate. The Court’s rationale was that the cat’s happiness took priority over the property rights between two former roommates. See Zovko v. Gregory, No. CH 97-544 (Va. Cir. Ct. 1997).

A Texas Court, on the other hand, approved a lower court’s order that included a “property division” which provided reasonable visitation with the family dog. See Arrington v. Arrington, 613 S.W.2d 565 (Tex. App. 1981). In that case, the court stated that ‘‘a dog for all its admirable and unique qualities is not a human being and is not treated in the law as such” Id. at 569. The court further noted that it was hopeful that ‘‘both [parties] will continue to enjoy the companionship of [the dog] for years to come within the guidelines set by the trial court,” and that a dog was not a commodity that could be bought or sold or decreed, rather it should be shared instead of argued about. Id.

Other jurisdictions have refused to enter custody or- ders with respect to household pets. A Delaware court in Nuzzaci v. Nuzzaci 1995 WL 783006 (Del. Fam. Ct. 1995) refused to sign a stipulated order which provided a visitation arrangement for the parties’ golden re- triever. The court based its decision upon a lack of statutory authority. Similarly, a Florida refused to af- firm the lower court’s order that provided a visitation schedule for the parties’ dog. The court’s rationale was that the dog was premarital property, and the court did not have the authority to grant custody of or visitation with personal property. See Bennett v. Bennett, 655 So. 2d 109 (Fla. Dist. Ct. App. 1995).

In DeSanctis v. Pritchard, 803 A.2d 230, 28 FLR 1419 (Pa. Super. 2002), the Pennsylvania Superior Court af- firmed the trial court’s decision to dismiss a complaint to enforce a settlement agreement that provided for shared possession of the parties’ dog. The court held that the settlement agreement was void, as it attempted to award visitation with or shared custody of personal property.

Although many jurisdictions have been reluctant to apply custody statutes to disputes involving pets in di- vorce and custody cases, the issue of what to do with the family pet in divorce cases continues to exist. For an attorney, the best approach is to try to enter into a settlement agreement in which the parties can agree to terms with respect to their pet (although, as indicated above, enforcement may be a problem). Otherwise, in most jurisdictions, the best interests of the pet will not be considered, and the pet will be treated as the parties’ personal property.