In Texas, as under the Anglo-American common law, dogs are property. The Texas Supreme Court recently emphasized this legal position in a case that began by acknowledging that Texans love their dogs but holding that no emotional-related damages may be collected by a plaintiff for harm to a dog.
Texas divorce law is no different. A dog is lumped in with other marital property and gets divided with the other marital assets, without regard to the parties’ relationship with the pup, or where the pup is likely to be happier.
While this has been our law since independence, suspect its days are numbered. Dog divorce law, in a handful of states, has already moved on. In these jurisdictions, their divorce law is consistent with how a beloved dog is likely to be seen divorcing parties: as more important than the crystal collection, or even the Springsteen album on vinyl. Most people who live with a dog have a strong emotional attachment with their furry companion. They miss their dog during prolonged separations and grieve when their dog dies.
Additionally, our criminal law already treats dogs as something more than mere property. Texas makes harming a dog a crime. Additionally, those who harm dogs are treated—by the public—far differently than those who harm the household furniture, as one NFL quarterback poignantly learned.
Nonetheless, in nearly all states, divorce law remains unchanged. There is no requirement for any court to consider a party’s emotional attachment, and, at least in theory, a family court can order that a dog be sold, with the proceeds divided.
Change, however, is in the air. The first crack in the legal facade came in 2000, when a couple in San Diego spent $150,000 in a two-year court battle over possession of their pointer/greyhound mix, Gigi. The court heard evidence from an animal behaviorist and a permitted, as evidence, a video entitled “Day in the Life of Gigi.” It showed Gigi sleeping under the wife’s chair and cuddling with her. She was eventually awarded custody.
The first state court to venture from the common law of dogs in divorces was in Alabama. In 2010, an Alabama appeals court signaled its perplexity, observing that “where a pet is the subject of a division of property, the courts sometimes consider the best interest of the animal, and, as a pet is personal property, sometimes do not.”
The Placey court appears to have ignored the dog-as-mere-property common law:
“The trial court determined that Preston would be better cared for in the family home occupied by the mother … the daughter was living in a hotel and … Preston needed a yard and not the cramped quarters of a hotel room. Thus, it appears that the trial court considered the best interest of Preston in determining that the mother was Preston’s true owner.”
In 2014, Vermont became the first of our sister states to authoritatively revisit its law about dogs in divorces. The Vermont Supreme Court held that, while dogs were not the same as children, a family court must determine the best interests of a dog and make what is in fact, even if it is not yet called, a dog custody determination:
“we hold that the family division may consider … the welfare of the animal and the emotional connection between the animal and each spouse.”
The case before the Vermont court did not involve any children or any other property dispute. The parties’ only bone of contention (sorry) was that both parties wanted to retain Belle, a German wirehaired pointer. There was no evidence of Belle’s market value beyond any other German wirehaired pointer with her training and age.
The court found it instructive that the husband treated Belle like a dog, while the wife tended to treat Belle like a child. In the end, the husband prevailed because he regularly took Belle to work with him. He was able to do so because of his career path: He is a veterinarian.
New York seems ready to follow Vermont. A trial court in New York City found itself, in 2013, with a case disputing custody of Joey, a miniature dachshund. The two spouses fighting over Joey brought evidence to the Court, such as the side of the bed where Joey preferred to sleep.
In his decision, Justice Matthew Cooper offered a retort to those who might argue that puppy custody determinations were a waste of judicial resources, observing that, “if judicial resources can be devoted to such matters as to which party gets to use the Escalade as opposed to the Ferrari, or who gets to in the Hamptons house instead of the Aspen chalet, there is certainly room to give consideration to a case involving a treasured pet.”
California elected to change its law, and follow Vermont, by legislation. The new state law, which took effect with the new year, empowers judges to consider “the care of the pet animal.” The law’s legislative sponsor, Assemblymember Bill Quirk said that the law “makes clear that courts must view pet ownership differently than the ownership of a car.”
Changes in the law occur, in the United States, one state at a time. I suspect that, soon, dog custody determinations will become the norm.