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Pet Custody Laws: A Reflection of Pet Parents’ Attitudes

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Attitudes on how Americans view their pets have changed drastically in the last few decades. According to the American Veterinary Medical Association, of the 62 percent of Americans who share their homes with at least one companion animal, 80 percent now consider pets to be family members. This attitude is likely to increase as Millennials, the largest generational group of pet owners, see their dogs and cats as fur kids, replacing the children they are not having.

The idea that dogs in particular were legally no more than property came about through an 1897 Supreme Court ruling. Since then, the role of animals has changed from working farm or breeding animals to close companions. 

Despite this, the law in most states still treats companion animals as monetary assets in a divorce. In many cases, Fido or Felix is seen as no different than a set of silverware, with judges deciding to grant custody to the person who can prove ownership. But, state by state, things are changing. In 2017, Alaska and Illinois began to allow judges to consider the “unique nature” of the relationship of pets and their families when deciding who gets the dog or cat.

In 2018, the most expansive law so far was signed by California Governor Jerry Brown, the owner of two dogs, laying out the specifics judges can use in divorce cases. The new law allows judges to consider the best interest of the pet when determining sole or joint custody and allows pet parents to petition for custody. And as goes California, so goes the nation. Pet custody hearings are part of an increasing trend. Rhode Island, Pennsylvania and Washington, D.C., are currently considering legislation that would be similar to the law in California.

Minnesota attorney Barbara Gislason, author of Pet Law and Custody; Establishing a Worthy and Equitable Jurisprudence for the Evolving Family, said that the remaining 47 states are taking notice. “They see that attitudes about animals changed when they became family,” she said. As in a child custody case, according to Gislason, “A judge might take into account which person cares for, trains and takes the dog on walks or to the vet or can consider if one party not only ignores the animal but mistreats it. 

“In family law, some judges still think that fighting about a pet is stupid,” Gislason said. “But a lot of them are starting to consider pets as more than property. This is not family law. It’s something in between.” She thinks that fights over pet custody may end up in the same legal category as custody of embryos. “This is an interim category, something in between. Without new laws, it can become a very tangled mess, legally and emotionally.”

The tangled mess became true for one Rhode Island divorcing couple. In a 2017 case that attracted national attention, the two fought for custody for their elderly dogs, Marox and Winnie. Both Diane Marolla and her former husband, Paul Giarrusso, cared deeply for the dogs, considering them their children. Diane Marolla accused her former husband of not properly caring for the dogs, something he denied. The case ended up in the state supreme court.

In most cases, in a divorce, either one person or the other becomes the pet’s sole owner, with no in-between. In this situation, reflecting a drastic change, the court ended up giving Giarrusso custody on Tuesdays through Thursdays with Marolla having custody the rest of the week. 

Jesse Nason, the lawyer who represented Marolla, said that he and other lawyers are seeing more of this during divorces, a trend he thinks will increase. The result may create court fights everywhere, not unlike battles over children. “If you’re dealing with children, you’re dealing with the best interests of the child. Animals aren’t treated like that,” Nason told the Providence Journal. “I’d like to see legislation where animals are treated differently.”

Bruce Wagman, who runs a California animal law practice, said in the American Bar Association Journal that new laws may also provide additional protections for pets in cases of domestic abuse and can keep beloved animals from being used as pawns.  “Unfortunately, sometimes things do happen to the pet; they disappear, and one spouse might say, ‘I don’t know what happened with Fluffy; he’s gone,’” Wagman told the ABA Journal.

These laws also may lessen the likelihood of someone using a pet as a pawn. Wagman said that he worked on a case in which the husband, knowing his wife’s deep attachment to her dogs, told her ‘I’m going to go after those dogs unless you let me have the $3 million house.’ He was just so evil, this guy,” Wagman said. 

Finding yourself in a similar situation? Find a lawyer with knowledge of what your state allows when it comes to pet law.

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