Pets in Divorce, Part 1 of 2

This won’t be the first, and probably won’t be the last, time that I post a blog about how dogs get treated in a divorce. Why? As a dog owner I know what a meaningful role the family pet plays in our lives. As an attorney, I have seen the emotional impact that this issue can have on my clients. Because pets play such a big role our lives, it can become a major issue when divorcing spouses don’t agree on what should happen to the dog when they divorce. In Part 1 of this blog, I examine a recent decision by a Canadian judge and in Part 2, new legislation in Alaska, which together make this topic more relevant than ever.

A decision of the Queen’s Bench for Saskatchewan dated August 31, 2016 begins by stating “Dogs are wonderful creatures. They are often highly intelligent, sensitive, and active, and are our constant and faithful companions. Many dogs are treated as member of the family with whom they live.” True! I don’t think any dog or pet owner could disagree with that!

However, the judge goes on to state in the second paragraph, “But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.” Ouch! I guess the judge didn’t want to sound like a complete animal hater before he set forth all of the reasons why dogs cannot be treated like anything other than property in family law decisions.

Although this case was decided in Canada, it is important to remember that California (and the rest of the US) also treats pets as property in divorce matters. The Canadian judge’s decision thus gives us insight as to the reasons why a judge, even in California, would refuse to treat a pet as anything other than property.

To put this case in context, the Canadian case was about a couple who had no children. Rather, they had two dogs that they treated like children. Wife in this case claimed that she was the spouse who was highly involved in all aspects of the dogs’ lives while the Husband only contributed on rare occasions.

In its pleadings, the couple essentially argued over the care of the dogs as most people would with their children. The Wife claimed that she was responsible for everything in the dogs’ lives; including feeding, training, exercise, cleaning, grooming, vet visits, etc. She claimed that Husband would, only on a rare occasion, help out with the dogs. Not only that, she claimed that he was neglectful of his two cats that he brought into the marriage. Of course, the Husband argued that the dogs were just as important to him as they were to his Wife. He requested that the judge award one dog to him and one dog to the Wife. He even said that the Wife could choose which dog she wanted to keep.

Because Husband recognized that the dogs would be treated as property under the law, he framed his request as one for exclusive possession. The Wife, on the other hand, was essentially requesting custody orders for the dogs. She requested that both dogs live primarily with her, but that Husband could have reasonable visitation, with notice, for no more than 1.5 hours at a time. She also asked for sole decision making authority for the dogs; which, in child custody matters, is known as sole legal custody.

After setting forth these facts, the judge took a no holds barred approach in his resolute and steadfast explanation of why dogs simply CAN NOT be treated as anything other than property in family law cases. The judge did, of course, make some very good points here. He noted that while people often treat dogs as children, there undoubtedly remain significant differences between the way that people treat their children versus the way they treat their dogs. For example, he stated, when a dog becomes ill, people typically do a cost-benefit analysis to determine whether to provide the dog with medical treatment or to end the dog’s life to end the suffering. This would never be a consideration for a child. Or, the judge mentioned, when a child acts out, the parents do not muzzle them, or put them to sleep if the transgression is bad enough.  Therefore, the Court refuses to treat this decision as anything resembling a custody determination.

In treating dogs as property in divorce, the judge points out that he actually has the authority to order that the dogs be sold and the proceeds be split; as he could do with any other piece of property for which the parties couldn’t agree to a disposition. He uses an analogy here, one that even he recognizes to be ridiculous, of butter knives. He asks, “Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast?

While the judge’s last comment does seem to put things in perspective, it does not resolve the emotional turmoil that this issue has the potential to evoke in divorcing pet owners. But, while much of the above sounded like a rant by someone who definitely does not love animals, the judge does also make a very significant point:

“In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication (…) it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. (…) To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged.”

Finally, the judge refuses to make any orders pursuant to the parties’ request. After a 15-page discussion of the facts and the parties’ requests, he simply dismisses the matter and strongly urges the parties to work together to resolve their differences.  If you are interested in reading the entire decision for yourself, you can access a full copy here. It is certainly hard to believe that a California judge would have taken so much time delving into an issue just to dismiss a request in its entirety.

To that point, we too in California face significant constraints in judicial resources and a back-logged system that causes even the most “important” issues wait several months to be resolved. As an attorney who sees the nightmares of child custody disputes daily, I can only imagine the consequences of allowing pets to be treated under the custodial framework of the divorce system. This could cause double, maybe triple, the amount of disputes between divorcing couples. Even so, for pet owners, this reality is not an easy pill to swallow. If this concerns you, blog Part 2 of this mini-series may give you some hope.

Please contact us if you are considering divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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