Pets are People II
- 08 July 2016
- Cindy Vova
- 0 Comments
A while back I wrote about a British woman who pioneered the “pet nuptial” agreement, designed for couples to, in advance of any split-up or divorce, determined what would happen to the family pet if such a split up occurred. Not unlike a prenuptial agreement for couples about to marry, the pet nuptial handled the “custody”, if you will, of a couple’s animals. How it differs from a prenuptial among humans, however, is that it would, in fact, determine “custody.” One of the major matters that a prenuptial agreement cannot legally address is a timesharing schedule for future children that may come into being after the divorce.
Thus, here is the big difference. Although we pet lover subscribe to the mantra that “pets are people too,” the law does not recognize them as such.
There is, however, some new hope for the divorcing doggie (and kitty, horse, bunnies, ferrets, etc.) lovers out there. Although I have outlined below just a few highlights of cases in various states that have refused, ultimately, to raise a pet’s status above “personal property,” just last month the Supreme Court of Oregon (where, so I am led to believe, pets are frequently relished more than people) in State of Oregon v. Newcomb, decided June 16, 2016, that a dog was not property. The main issue was whether police could seize evidence without a warrant during an investigation. This, of course, is a fairly common issue in criminal cases. The difference in the Newcomb case, however, was the evidence seized, instead of the typical gun, drugs, etc. was Juno, the defendant’s dog, and the subject of charges against the defendant for cruelty to animals.
Juno’s blood, drawn by a veterinarian after Juno was rescued from the defendant (I can say rescued because she’s convicted now) was used in the criminal trial to show that Juno’s sad condition resulted not from a medical condition, but from abuse. Initially, the blood was drawn by the vet to treat the dog, but it was later used in the criminal proceeding in the trial court to convict Ms. Newcomb.
The defendant argued that Juno was “property” and therefore, the evidence seized was improperly obtained without a search warrant and that she had a privacy right in that blood. The Oregon court had to grapple with whether the fact that the dog, who was clearly not an inanimate object such as gun, made a difference. Ultimately, the Court determined that it did, in fact, make a difference, and stated that the dog was not property but rather, since animals “are sentient beings capable of experiencing pain stress and fear” Ms. Newcomb was not entitled to a privacy right and a search warrant was not needed. In other words, it did make a difference that the property seized was living. For the full opinion see: http://www.publications.ojd.state.or.us/docs/A149495.pdf
This is a recent case…and it was decided in Oregon… not in the Supreme Court of the United States nor the Supreme Court of Florida. However, it is a step in the right direction that could provide guidance and argument for future divorce cases in upgrading a pet’s status from property to people. After all, you can replace the television and the couch and make copies of family pictures, but there’s only one Fido!
Below is a summary of some of the better known pet challenges over the years throughout the country. After reading these, you will understand why it is better to work out pet timesharing than have a judge decide.
Courts have had the issue of whether pets are property or people brought before them for at least 72 years. The firs reported case was Akers v Sellers, a 1944 case out of Indiana. Stella, the parties’ dog was not mentioned in the divorce and thereafter the former Husband asked the court to award him the dog. Apparently this was the Husband’s biggest concern as World War II raged across the globe! Stella stayed with her “mom” because the court rationalized that Stella was given as a gift to her during the marriage by the husband, thus affirming Stella’s position as property.
Over the ensuing years courts in a number of states have addressed the Pet vs. Person issue. Notably: in
Ballas v, Ballas (California 1960), although holding that a Pekingese was property, awarded the dog to the wife, because she was the party who most cared for it. Although still property, the court did look to the “best interest” of the animal.
Arrington v Arrington (Texas 1981) held that dogs are personal property not to be confused with humans, but in dicta( the opinion that does not become law) stated that the wife should be kind enough to consider letter the husband visit the dog.
In re the Marriage of Stewart (Iowa 1983) acknowledged the dog was property and even though the dog was a gift from the husband to the wife, awarded it to the Husband because the dog consistently accompanied the Husband to work. This is consistent with Florida law where a gift give by one spouse to the other is thrown back into the pot of equitable distribution at the time of divorce. On the other hand, it seems the Iowa court, as with Ballas, took into account factors that would typically be considered in a child timesharing dispute.
Dickson v Dickson (Arkansas 1994) appears to be the first reported case where the parties’ dog was subject to a joint custody arrangement where the Husband was required to pay $150 per month in doggie support. Subsequently, the parties agreed to modify the judgment where the Husband, in exchange for relinquishing his rights in the dog, was relieved of his doggie support. (Wonder how many parents would cut the same deal if relieved of child support- sadly; I’ve seen it [in step-parent adoptions] happen all too often.
In re Marriage of Tevis-Bliech, (Kansas 1997) the parties’ settlement agreed that the Husband could visit with the family dog, Cartier. (Do not judge…our dog is Chanel and that’s the only thing I own with that name) the Kansas appellate court affirmed a trial court decision holding that it lacked jurisdiction to modify a divorce settlement agreement that (by contract) gave Michael Bliech visitation with Cartier, the family dog. This left visitation intact.
In re Marriage of Fore (Minnesota 2000,) Similar to Dickson the Husband was to have visitations the first week of each month. Sadly, the schedule was unsuccessful and the husband gave up his doggie visitation rights.
An unpublished case in California (you knew California had to have something to say about this), a husband and wife engaged in a two year battle over their adopted dog. Ultimately, the wife won, but not after she first employed an animal behaviorist to prepare a study about doggie bonding, and preparing a “Day in the Life video” (usually reserved for people whose lives have been drastically changed as a result of a catastrophic accident) to show the court. Thus, the wife, by employing these experts for her cause gave new meaning to the term “whore dog” expert in a case.
Juelfs v. Gough (Alaska 2002). The Alaska Supreme Court upheld a lower court decision awarding sole custody of the parties’ dog to the husband with no visitation for the wife, after a shared ownership arrangement failed. And no, it was not a wolf dog (Alaska-get it) that had eaten their kids and thus the fight; it was an overly friendly chocolate Labrador retriever.
Nuzzaci v Nuzzaci (Delaware 1995) The parties entered into a divorce settlement that included timesharing with the dog. However, the Court refused to sign the order ratifying same….even though the parties agreed, stating it did not believe it had legal authority to do so.
Bennett v. Bennett (Florida 1995) The divorce court gave the wife visitation, including holidays, with the parties’ dog, Roddy. However this was reversed on appeal as the appellate court stated the divorce court could not award visitation with personal property. (in other words, you can’t go visit your sofa every other weekend)
DeSanctis v. Pritchard, (Pennsylvania, 2003) The divorce court refused to enforce an agreed upon settlement document for joint custody of Barney, a Golden Retriever mix. The court held that the agreement was void (in other words, it never existed in legalese) because it attempted to award visititaion to the parties over property.
So the Newcomb case may be a step in the right direction, but it is only a step…we still have a long way to go here in Florida. For now, you may want to include who gets current or future pets (the property as of now) in a prenuptial agreement or, if already married, a postnuptial. Call us for more creative ideas!