Who Gets Custody of Fido?

In many broken families, decisions about who gets the kids on Christmas Day or during Spring break is not a contentious issue. Yet the same level-headed spouses will burn up cash for lawyers as they brawl over who takes the family pet. As a dog owner I completely understand the emotional bond between a pet owner and their dog or cat. There is nothing better than arriving home after a long day at the office to a spirited greeting from your dog, who’s tail is bouncing in the air.

So what are the solutions and will a court get involved in these dilemmas? In most cases the matter is settled by one spouse giving in, realizing that he/she cannot continue to fight about the issue. Often times, if a couple remain living in the same community or an adjacent community, custody of Fido or Fluffy will be shared. Some couples do week on/week off, while others decide that each of them will have the pet for six months of the year.

Ten years ago it would have been unheard of to bring a pet issue to court, if you could actually find a judge who would hear the case. But today, it is different. With the emergence of childless couples and elderly folk who live for their dog, these cases are more common. In a National Pet Owner Survey conducted by the American Animal Hospital Association, 93% of pet owners said they would be willing to risk their own life for their pet and 83% of dog owners refer to themselves as “mommy” or “daddy”.

A leading decision from the New Jersey Court of Appeal (yes, it actually went to the appeal court!) is Houseman v. Dane. The parties lived together, bought a home and became engaged in 2000. In 2003 they bought a pug named Dexter. Mr. Dane broke off the engagement and when Ms. Houseman moved out she took Dexter with her. She allowed Mr. Dane to take Dexter for occasional walks. Several months later Ms. Houseman went on vacation and left Dexter with Mr. Dane. Upon her return, he refused to relinquish the dog.

She sued in court for the return of Dexter under a legal concept called “specific performance”. The trial judge held that specific performance did not apply to pets and since Mr. Dane now had Dexter, he would retain the dog and pay Ms. Houseman $1500.00. The trial judge said that pets differ from personal property such as art, jewelry, heirlooms and the like, which can be appraised and valued.

The Court of Appeal disagreed and said there was no difference between the emotional ties to a pet and the sentimental value of an inanimate object. The judges also said that a monetary award was not sufficient to compensate Ms. Houseman for her loss. The Appeal Court, however, did not accept that Dexter’s custody should be based on “the best interests of the dog”. The case was sent back to the trial court for final determination on the basis that the court had jurisdiction to use “specific performance” and return the dog, if appropriate.

For more information on pet law see pettrustlawblog.com: Estate Planning for Owners of Pets.

Lawdiva’s puppy, Phoenix

Lawdiva aka Georgialee Lang