December 14, 2009 (Original publish date) • By Dennis Beaver
Last week I told you about one of the most bizarre divorce cases I have ever handled, where the fight wasn’t about homes, cars, furniture, insurance policies — none of that. Rather, it was over who would have “custody” of 13 cats, acquired by a childless couple over their 10-year marriage.
Resolution wasn’t a simple matter of tossing a coin. The wife was (understandably) a wee bit upset, learning that her husband wasn’t simply bisexual, but about to invite several hundred of his closest friends to a “coming out” party. While I was hubby’s lawyer, I never got an invitation, and my wife was relieved!
Our discussions at a “meet and confer” went far beyond mere kitty custody, but into visitation and cat support.
“How will I know if some of the cats have run away? I want to see them when I bring the food,” said my client. “You set foot inside the house and I will sic the cats on you!” replied wife. (Now that I really wanted to see!)
Going on hour after hour, I left the meeting with a realization that what I might only think of as an “animal,” to someone else — to this couple — is a true member of the family.
Not having owned a pet since my high school years, I had forgotten the joy, that wonderful feeling of our little Chihuahua — who I loved so much — falling asleep on my pillow. And how I cried when she died.
I left our meeting completely mute. The cats got my tongue.
In divorce, some courts go beyond property rules
“Historically, divorce lawyers would tell their clients to get estimates on what it would cost to replace the pet. But this resulted in a great deal of sadness and loss, often for that person who most needed — yet lost — the loving companionship their pet could provide,” said attorney Stephan Otto, with the Animal Legal Defense Fund based in California.
“But over the past few years, we have seen a real change in attitudes of judges in various parts of the country who now see pets as true members of the family, very much like a child, and today, we speak of companion animals. There is a real movement in the country to help both lawyers and judges think in terms of the best interests of the animal, just as they do for children,” he pointed out.
Approach it as if it’s a child custody case
“For anyone in this situation — with custody of the family pet in dispute — think of and approach the case as if it were a child custody matter,” the animal rights attorney recommends.
“Your attorney — or if you are representing yourself — must show a number of important factors: (1) Who is providing the greater level of companionship, care? (2) Does that person have the financial means to support the animal? Who is emotionally in a better position to keep the pet? (3) Who has the greater need for custody of the animal? (4) Who does the animal appear to be most happy with?
“To establish these elements of proof, consider obtaining testimony from friends, family or mental health professionals.
“Additionally, the animal’s living situation is important to establish. Is there a yard for the pet to play in? Someone to take it for a walk? Does it have contact with other family members whom it knows and is comfortable with? All of these issues need to be addressed, and the couple should keep in mind at all times what is best for that loved family pet” the Portland, Ore., attorney advises.
Who Is the better ‘parent’?
As in my cat case divorce, often it’s all about power, control and winning. In community property states, where the family’s money was used to buy the pet, who made the purchase is probably not going to be all that important, unless it was an actual gift to the other spouse and that can be proven.
“You need to stand up for what you think is in the best interests of the animal,” the animal rights attorney concluded.
To that I would add that, when we think of others — in this case, of what’s best for our pets — often, that person sitting in judgment will think better of us.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.