The Status of Pets in Divorce

I remember vividly the conversation I had with Judge John C Calhoun as a brand new divorce lawyer in Jefferson County Domestic Relations Court. The documents I produced in my first uncontested divorce were – predictably – riddled with errors. Judge Calhoun slowly and patiently worked through them with me and pointed out each change I needed to make and why. I’ll always be grateful to him for that.

When we got to the language where I had called for the husband and the wife to take turns spending time with their golden retriever, I feebly protested his telling me to take it out. He looked at me – I already knew I was in trouble – put down his pen and took off his glasses. “Counselor, I ain’t gonna have nothing to do with visitation for a damn dog.” I got the message. One of those mistakes you need to make only once.

Judge Calhoun was expressing the clear consensus among family court judges in America, and for that matter across the world. Divorce courts have enough to say grace over without getting into people’s relationships with their pets. I routinely ask my clients whether there’s anything we need to say about pets, but their options are limited; they can describe who will own the cat, but that’s about it. The judge will not enforce, and will not allow parties to insert, provisions describing schedules, duties of care, or visitation.

Now comes word of a judge in Canada who has taken the time to spell out the reasons divorce courts are not interested in getting into the lives of pets. After acknowledging that “Dogs are wonderful creatures,” Justice Richard Danyliuk wrote in his ruling for the Court of Queen’s Bench for Saskatchewan, “After all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

It took him 15 more pages to lay out in patient detail why he would not order a visitation schedule for the three dogs belonging to the parties, 13-year-old Quill, 9-year-old Kenya and 2-year-old Willow. The article in the Washington Post doesn’t get into the minutiae of his reasoning, but you can probably guess at some of it.

“I strongly suspect these parties had other personal property, including household goods,” he wrote. “Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast?”

The article quotes David Grimm, the author of Citizen Canine: Our Evolving Relationship with Cats and Dogs. According to Grimm, the status of animals as property means “they basically legally have the same status as a couch or a toaster.”

The dilemma that family courts face is this: pets may not be children, but they’re not simply property either. Pets can now be beneficiaries of trusts in most states, and occasionally, courts appoint lawyers to represent them. All 50 states prohibit cruelty to animals.

“Clearly, nobody’s going to fine you for setting your couch on fire or taking a bat to your toaster,” Grimm says.

Our views and shared understanding of our relationships with our companion animals have evolved significantly over the last century. It’s only in the last few decades that society’s view of animal cruelty has permitted states to treat animal cruelty as a felony rather than a misdemeanor. As society’s views change, it’s certainly possible that family courts will follow suit. However, I’m not yet seeing any sign of it in the courts where I practice.

So where does that leave pet lovers when they divorce today? Exactly where they’ve been for the last century or so. The judge in their divorce case will allow them to specify who gets the standard schnauzer named Rascal or the grey and yellow cat named Precious, but those parties will strike out (and spend extra money for no good reason) if they try to specify anything else in their divorce decree.

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