By Elaine S. Povich
The divorce court judge was frustrated. The husband, in tears. The wife, adamant. The couple’s love for each other had ended, but each professed to love and want the dog. How would the judge decide?
The husband offered thousands of dollars to his soon-to-be-ex for the pit bull terrier mix named Sweet Pea. The wife wouldn’t accept the compensation, and insisted the dog was hers, a gift, in fact, from her husband.
“This was a mutt they got at the pound, and it wasn’t worth money,” said family attorney Erin Levine of Oakland, California, who represented the husband and said the judge gave her grief for not settling the dispute out of court in the 2015 case. “There was no way we weren’t going to litigate this; they were so attached to the dog.”
The woman produced a greeting card from her husband saying “This (dog) is your gift for Christmas. I love you.” Finally, the judge gave her custody of Sweet Pea. Her husband, Levine remembered in an interview, was inconsolable.
It’s that kind of messy pet custody case that a new California law is supposed to help solve.
Former Democratic Gov. Jerry Brown, owner of two “first dogs,” corgi mix Lucy and bordoodle Cali, signed the bill, which took effect Jan. 1. It outlines criteria judges can use to determine what’s best for the dog.
The law allows people to petition for custody of a pet. It empowers judges to take into consideration the care of the pet when determining sole or joint ownership. Questions like “who walked the dog?” and “who took the cat to vet appointments?” are now permissible criteria for determining custody.
While pets are not considered children and are technically property, the California law, recognizing what it calls pets’ “unique nature,” sets up special assessments that judges can use to determine custody in contested cases.
Only Alaska and Illinois have similar statutes, both of which took effect in 2017. But the California law is the most specific, and at least a handful of other states are looking to it as a model.
“This is something I think you could see creeping up in statehouses across the country,” said Crystal Moreland, California state director for the Humane Society of the United States. “Once California gets involved in something, you tend to have a national effect.”
There’s apparently plenty of need for the laws. A 2014 survey by the American Academy of Matrimonial Lawyers showed that respondents reported a 22 percent increase in pet custody hearings in the preceding five years.
Dogs were the most disputed family animal, with 88 percent of the cases. Cats were a distant second at 5 percent. Horses made up 1 percent, while the category of “other” registered 6 percent, including an iguana, python, African grey parrot and even a giant 130-pound turtle.
“Do we want to treat them like humans? No, but we don’t want the pet considered like the couch either.”
Democratic Rhode Island state Rep. Charlene Lima, author of a bill to change divorce laws to account for pet custody
In addition, 20 percent of the attorneys surveyed cited an increase in courts determining that pets are an “asset” in a divorce.
Other than in states with the new laws, pets are generally considered property to be divided between warring couples. That didn’t make sense to Rhode Island state Rep. Charlene Lima, a married Democrat who authored a “best interests of the pet” bill last year.
Although the bill stalled in committee, Lima, who owns a “very spoiled” 8-year-old husky named Keiko, is readying a new bill modeled on California’s for this year’s session.
She said she has had constituents tell her about contentious divorce fights that end up costing them “tons and tons in legal fees over the pets.” She maintained her bill would smooth the process by setting out criteria by which judges could make the determinations on pet custody.
“Do we want to treat them like humans?” she said. “No, but we don’t want the pet considered like the couch either.”
The California law allows judges in divorces with pets to take into consideration:
-Who feeds the pet?
-Who adopted the pet?
-Who purchases food, toys and other things for the pet?
-Who walks the pet?
-Who takes the pet to the vet?
-Who protects the pet?
-Who spends the most time with the pet?
-Have there been allegations of domestic abuse or abuse of the pet?
Democratic California state Assemblyman Bill Quirk, the bill’s author and owner of a 13-year-old Maltese Shih Tzu mix named Luna, which he and his wife adopted from a shelter two years ago, said he was looking to write a law that would encourage judges to consider the pets’ best interests.
“Pets are very emotional,” Quirk said. “As the owner of a rescue dog … I thought it was very important that their welfare be taken into consideration.”
But he said judges and family lawyers were concerned about how long it would take to settle pet custody in already-time-consuming divorce cases and that the new law might give spouses another avenue for revenge.
Members of the Association of Certified Family Law Specialists in June testified before a California Senate committee that they opposed the bill because cases of “marital dissolution and legal separation already face significant delays and issues of contention in court, particularly surrounding child custody.”
Dorie Rogers, family law specialist in Southern California and associate director of the family law association, said her members were worried that clients would have “one more thing to fight over.”
Before the new law, she said, she had to explain to clients that since pets were property, they simply had to try hard to settle matters before it got to a courtroom.
She expects the new law will encourage more of them to go before the judge, now that they know what criteria might be taken into consideration. With more people, especially millennial couples with no children, treating their pets like kids, she said, cases are about to get very complicated.
Rogers also said her group opposed the law because of worries about increased time and cost of litigation in divorce cases.
Certifying the welfare of the animal will be difficult and might require expert testimony, Rogers said. “How do you prove that? Did you feed the dog, did you take it to the vet? Who’s going to be the tie-breaker? Are you going to bring in the vet?” she said in a phone interview.
To try to address those concerns, Quirk amended his bill to make courts’ special consideration in pet custody cases voluntary rather than mandatory.
Marie Sarantakis, a family law attorney in Illinois, one of the other states with a pet custody law, said she has handled divorces in which one spouse uses a pet as leverage. In one case, she represented the wife, who had a beagle that she’d owned before the relationship. Out of the blue, Sarantakis said, the husband filed for divorce and asked for the dog.
“That completely caught her off guard,” Sarantakis said. “She never would have guessed it was something he wanted. She believed that the purpose of asking for the dog was to gain power and ask for other things. Luckily the case got resolved, and she kept the dog.”
Sarantakis said the pet custody cases can sometimes become more emotional than disagreements over children.
“The children can vocalize. With the dog, you don’t know what they want,” she said. She noted that sometimes judges award custody of pets in the same manner as children, when the kids go with mom, for example, so does the pet.
While pleased that the new law attempts to ease what she said is a “challenging and emotional issue for a lot of people,” California family law attorney Deborah Marx, immediate past president of the American Academy of Matrimonial Lawyers chapter in Northern California, is skeptical that it will make a difference in divorce cases.
She noted that even though the law aims to take pets out of the property split in a divorce, the statute is in the property division section of the law, not in the family code section. But, she said in a phone interview, it’s in a section that deals with unusual provisions, in what is generally a community property state where marital assets are divided equally. That puts the pet question in a special category.
The unusual provisions section addresses situations such as when one spouse receives a personal injury award during a marriage, allowing courts to award that spouse the entire amount. Similarly, a pet could be considered the property of one person, she said.
But Marx said much is still up to the judge’s discretion and that couples with pets “get very differing receptions from the judges depending on how judges feel about pets. Some are sympathetic and some are ‘why are you wasting my time?'”