November 3, 2017 • By Dennis Beaver
When mommy and daddy bring home a puppy for the kids or a young couple starting out in married life get a dog, a new chapter of love is brought into the home.
“But what happens if they divorce? Who keeps the family pet?” asks Seattle, Washington-based attorney Gemma Zanowski, considered as one of the nation’s leading experts in Dog Law. As a lecturer for Law Pro CLE, she conducts continuing legal education seminars for lawyers who deal with the reality of situations just like San Luis Obispo reader Angela wants to avoid:
“For the past two years, Ben and I have been in a long-distance relationship but in order to see if we are marriage material, soon we’ll be moving in together. Before my parents divorced, home was a happy place with our German Shepherd and three cats who just loved that dog.
“To this day I still remember how sad I was, how I cried when I went to live with my father and mom kept all the pets.
“We have talked about getting a dog. I know this sounds negative, but if we do and our relationship completely breaks down and we wind up in court, how do judges decide who keeps the dog? Are there steps I could take which would help me retain ownership?
“Please do not think badly of me, Mr. Beaver, but I just do not want to risk going through that horrible pain of loss again. That may sound silly to someone who never owned a dog, but even today, at age 30, just thinking back to my parents’ divorce gets me close to tears. Thanks, Angela.”
Little place for feelings – Animals are generally considered as property
“While we love our animals, to the law, in most states they are seen as property,” Zanowski points out, adding, “Therefore, it is important to understand your state’s custodial laws. It is likely that dog ownership will be determined by whatever the legal property status is of that animal, feelings and emotions playing little role in deciding who will keep it.”
Of course, to most people, our dogs aren’t just property. We love them. They love us. We care for them in sickness and health. They are members of the family.
We asked Zanowski, “Now as it is common to set up a trust fund for our pets, there must be judges somewhere who will ask a“What is in the best interests of this dog? Show me who is better able to care for the dog, who is closer to it?”
“Yes, there are courts which ask those very questions,” she replied. “There have been recent divorce cases in several jurisdictions where there is the suggestion that the best interests of the dog is a relevant legal inquiry. Unfortunately, in most states, technically, the best interests of the animal is not yet legally relevant when it comes to determining ownership.”
How can I establish the best interests of the dog?
While American justice moves slowly, judges are aware of and sensitive to where the law is headed. At one time, fathers were seldom awarded custody, but now they are. All it took were good facts, lawyers who built persuasive cases and judges with common sense who listened and agreed.
At one time, what was best for the dog didn’t matter and now, in some states, it does. So, with that attitude in mind, we asked Zanowski what would help to build your case and convince a judge that your home is best for the dog.
“As you have an animal who cannot speak for itself, someone has to make a human-centric determination as to what matters to it. Answers to these three threshold questions will have been provided:
1. Who is the primary caretaker?
2. What is the living environment like for that animal?
3. Can one party in the divorce take the dog to work or will it sit at home all day or in a kennel?What elements of ownership can you provide?
Zanowski notes that when contacted over an ownership dispute, she asks:
1. Is there anything in writing which shows who was considered as the owner?
2. Who is the dog licensed to?
3. If there is AKC paperwork, who is the dog registered to?
4. Who paid the vet bills, the food bills, if the dog was purchased from a breeder, who paid for that animal?
Zanowski concluded our discussion with these thoughts:
“Judges have the ultimate power to determine custody of the pet and on some level, many will consider the best interests of the animal. So, parties should see the bigger picture and answer this question: Where is this animal happiest?”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.