Anyone who has owned a pet knows that our pets are members of our family. We love them and care for them like any cherished member of the family. And, our pets love us! We receive affection, comfort and companionship from our family pets.
For this reason, it is shocking to pet owners involved in divorce cases to discover that the courts do not treat a family pet like a child, and will not order a “custody” and “visitation” order for a family pet. Rather, the husband and wife going through a divorce must come to an agreement on matters pertaining to where a pet will live, whether the other party will have some sort of visitation, and who will be responsible for veterinary expenses, medical care decisions, or even – in the future – who will decide if the pet needs a new home. If the parties do not work out these issues, the court will simply treat the pet as a piece of property, and will award the pet to a party, just like the court might award a bank account.
I might add that many of us veteran family law practitioners have handled cases where the “custody” battle between pet owners going through a divorce is as embittered as any we have litigated concerning child custody. It only makes it worse that a judge will treat the pet as nothing but a piece of property if the couple cannot come to an agreement.
This approach is consistent with other areas of the law. Traditionally, if a pet was injured or killed due to another person’s negligence, there were no compensatory damages to be recovered in a law suit. That is, the owner of the injured or deceased pet could not sue for emotional damages, but was limited to recovery of the pet’s market value – in the case of mixed-breed pets, a nominal amount of money indeed! Many people are shocked by this state of the law, because it is not consonant with our deeply felt love for our pets. Certainly, our pets are worth more to us than the few dollars it would cost to replace them at the local dog pound.
The good news is there does appear to be a trend towards recognizing the importance of pets in our lives. Recently, the American Bar Association published an article about a family dog named Rosie, who was shot and killed by a police officer in Washington State. Apparently, Rosie had gotten loose from her home, and run into a neighbor’s yard. According to the article, Rosie did not pose a threat of harm to anyone – even the neighbor was unconcerned and stated she could have kept the dog in her yard while the owner was located.
Rosie’s bereaved owners filed a federal civil rights lawsuit alleging that the city police department had violated their constitutional right under the 4th Amendment to be secure in the persons and effects (property). The article reports that an increasing number of people are filing civil rights actions under these circumstances. Apparently, Rosie’s owners lost their claim. However, the ABA article reports that some of these cases have made it to juries and have resulted in verdicts of over $600,000, which included both veterinary bills as well as compensatory damages for pain, suffering and mental anguish.
Those of us who love our pets and consider them family members will be watching this trend. There may well come a time when family court judges will award “custody” and “visitation” of family pets, and not just treat them as pieces of furniture.
And here’s a picture of my Rosie!
