Dog lovers will not be surprised to learn that custody of the family dog is frequently a bone of contention in separation or divorce. However, they may be surprised to learn that Fido is considered personal property under state law, the same as a piano or a favorite piece of jewelry. Many divorcing dog owners disagree with this law and want their dog treated like a child. Courts determine a child’s custody based on what is in the “best interests” of the child. Judges (who may be dog lovers themselves) are often torn between following the law, which treats the animal as an inanimate object, or giving in to the wishes of the parties.
Akers v. Sellers, a 1944 Indiana court case, appears to be the first reported case involving a dispute over a dog in a divorce. John Akers filed a court proceeding to get his Boston bull terrier back from his ex-wife, Stella Sellers. The dog was not mentioned in the divorce decree, and Stella, who kept the family home, ended up with the pet because it lived there. The court said the dog belonged to Stella because it was given to her by John during the marriage. This decision treated the dog like any other gift of personal property.
Sixteen years later, in 1960, in Ballas v. Ballas, a California appellate court refused to consider whether the family Pekingese was community property or separate property, a relevant issue if the dog were being treated as personal property. It agreed with the trial court that Shirley Ballas should have the animal because she was the one who took care of it. This is thought to be the first reported court decision where a court looked to the “best interests” of a pet in deciding who would get custody.
In Arrington v. Arrington, a 1981 Texas case, perhaps in response to Ballas, insisted that dogs are personal property (saying they are not to be confused with humans), but opined that although A. C. Arrington had agreed that his former wife should have custody of the dog, Bonnie Lou, there should be enough love in Bonnie Lou’s heart to allow for visitation with A. C. What dog lover would disagree?
Not long after that, an Iowa appellate court in In re Marriage of Stewart, while agreeing that a dog is personal property, affirmed the trial court award of Georgetta, the family dog, to Jay Stewart. Regardless of the fact that Jay had originally given the animal to his wife, Joan, as a Christmas gift, the court pointed out that Georgetta accompanied Jay to his office and spent a substantial part of the day with him.
In Dickson v. Dickson, in 1994, a Garland County, Arkansas, court entered a consent decree ordering Mr. Dickson to pay $150 per month in dog support in a joint custody arrangement that designated the former Mrs. Dickson as the primary custodian of the animal. The parties later stipulated to a modification of the decree to give the ex-wife sole custody, with her former husband to have no further liability for the expense of the dog’s future care since he no longer had an interest in the animal.
In the case of In re Marriage of Tevis-Bliech, in 1997, 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.
Although not a published court decision, Dr. Stanley Perkins, an anesthesiologist, and his wife Linda made headlines in San Diego County, California, a few years ago, when they engaged in a two-year dog fight over Gigi, a pointer-greyhound mix they had adopted from an animal shelter. Linda won custody of the dog through such legal theatrics as a canine bonding study prepared by an animal behaviorist and “A Day in the Life” video of Gigi. What was unusual was not only the astronomical legal fees incurred in the fight over Gigi, but the apparent willingness of the judge to listen to it all.
In a recent case in Alaska, the trial court tried a shared ownership arrangement between the divorcing parties and their chocolate Labrador retriever, Coho. When that did not work out, the court gave Stephen Gough custody and Julie Juelfs visitation. When that did not work out, it awarded sole custody to Stephen, meaning no visitation rights for Julie, an arrangement the Alaska Supreme Court upheld in 2002 in Juelfs v. Gough.
In spite of the foregoing cases, most courts seem to balk at entering animal custody orders. In Nuzzaci v. Nuzzaci, in 1995, a Delaware divorce court refused to sign an order agreed to by the parties that included visitation with a golden retriever. The court stated it did not believe it had authority to enforce such an order if the parties later disagreed.
In Bennett v. Bennett, that same year, a Florida appellate court refused to affirm a trial court order giving Kathryn Bennett visitation with the parties’ dog, Roddy, every other weekend and every other Christmas. The appellate court said the lower court had no authority to grant custody or visitation with personal property.
And, in DeSanctis v. Pritchard, the Pennsylvania Supreme Court, in 2003, upheld the dismissal by the trial court of a complaint asking the court to enforce a settlement agreement providing for shared possession of Barney, a mixed-breed golden retriever-golden Labrador. The settlement agreement was held to be void to the extent it attempted to award visitation or shared custody with personal property.
Although custody of the family dog in divorce cases may seem like a trivial issue to some, it is taken very seriously by dog lovers. The Animal Legal Defense Fund has filed amicus curiae briefs in some divorce cases, suggesting that the judge consider the companion animal’s best interest. Public and legal interest in “animal rights” is growing. There are reportedly 42 law schools offering courses in animal law, and at least two legal journals devoted to animal law, with others carrying articles on the subject.
In spite of objections that court dockets are already overburdened with ongoing disputes over the custody, visitation, and support of children, we may be headed for the day when dogs are entitled to their day in divorce court.