A bone to pick: Applying a "Best Interest Of The Family" standard in pet custody disputes.

• Author: Eason, L. Morgan

What happens to companion animals when pet owners divorce? The role of pets in the lives of humans has evolved so drastically that most companion animals are now considered a member of the family. Courts have failed to evolve with these societal changes, many continuing to apply a strict property law analysis. To combat these inequitable outcomes, some courts have tried but failed in applying a de facto "best interest of the pet" analysis. This article explains why the application of a traditional property law analysis as well as the attempted application of a de facto best interest of the pet analysis in pet custody disputes leads to inequitable results. This article is the first to propose the application of a "best interest of the family" standard in pet custody disputes. On a case-by-case basis, courts must keep the focus on family members in order to achieve the most equitable outcomes in pet custody disputes. In making pet custody determinations using a best interest of the family analysis, courts should consider factors such as child custody orders, lifestyle considerations and the ability to care for the companion animal, and the psychological and emotional needs of companion animal owners. In accordance with the evolving view of companion animals, courts should consider and apply a best interest of the family standard when determining the custody of companion animals in order to achieve the most equitable results in pet custody disputes.

I. INTRODUCTION

Pets are important. In the United States, we collectively spend over $58 billion a year on our companion animals. (1) We splurge on gourmet foods, interactive toys, schools and daycares, and even purchase health insurance for them. (2) Over nine out of ten companion animal owners consider their animal to be a member of their family, and over half of companion animal owners say they frequently let their animal sleep in the bed with them. (3) It is estimated that almost 70% of households, amounting to over seventy-nine million, own a companion animal. (4) Studies have shown that the presence of companion animals also positively affects physical and mental health. (5) The consideration of companion animals as members of the family brings many troubling outcomes should a family dissolve at some point during the animal's life. Should the owners of a companion animal separate or divorce, who should get custody of the animal?

In a legal context, courts are split on whether a traditional property analysis should apply or whether a de facto "best interest of the pet" analysis should be considered. (6) Traditionally, courts have applied a property analysis in determining who maintains custody of a companion animal in the event of a divorce. (7) Courts have found adhesion to this legal precedent troubling, with some going even further to apply a de facto best interest of the pet analysis in resolving pet custody disputes. (8) While both of these analyses provide valid frameworks for assessing the treatment of companion animals in pet custody disputes, they do not adequately provide for the best interests of the parties involved. Therefore, when considering the placement of companion animals in pet custody disputes, courts should apply a "best interest of the family" standard that considers and weighs various factors in the custody determination of companion animals to best suit the needs and interests of the family.

This article argues that, in accordance with the evolving view of companion animals, courts should consider the best interests of the family when determining the custody of companion animals. Courts should consider the well-being and stability of children, the ability of a party to care for the animal in accordance with their lifestyle, and the psychological and emotional needs of family members. Additionally, courts should take into consideration and take precaution in ruling for joint custody of companion animals for the sake of limiting interaction between the parties and promoting the well-being and best interest of both the owners and the animal.

The legal world has not yet addressed the argument for courts to apply a best interest of the family standard when making determinations in pet custody disputes. Precedent continues to suggest that neither a property analysis nor a best interest of the pet analysis provides a proper framework for courts to make important determinations regarding companion animals in pet custody disputes. Changing the legal status of companion animals, as other legal scholarship has suggested, is not the answer to this problem. Courts must instead consider and weigh factors in accordance with the best interests of family members in order to reach equitable decisions.

Part I of this article examines the role that companion animals currently play in the lives of humans by examining the history between humans and companion animals, the physical and mental health benefits of companion animals, and the integration of companion animals into the family unit. Part I also examines the approaches taken by family law courts in pet custody disputes, including the traditional view of animals as property and the emerging trend of applying a de facto best interest of the pet standard. Part I concludes with the examination of the underlying application by courts of a best interest of the family standard in pet custody disputes.

Part II examines the application of property law in pet custody disputes and discusses why this framework is inadequate to resolve pet custody disputes. Part III examines the application of a de facto best interest of the pet standard in pet custody disputes and explains why this framework is an inadequate resolution of such disputes. Part IV argues that a best interest of the family standard should be applied in pet custody disputes. Part IV also discusses policy considerations in support of this modem analysis in pet custody disputes. This includes the evolution of law to reflect changing social views of companion animals, the promotion of the interests of the family as well as the interests of companion animals, and the inability of courts to protect the interests of families and companion animals without the application of a new standard.

Part V discusses factors a court may consider when applying a best interest of the family standard, including the alignment of pet custody with child custody orders, the consideration of a companion animal owner's lifestyle and their ability to care for the animal, and the psychological and emotional needs of the companion animal owner. Part V also discusses the modification standard and includes a hypothetical application of the best interest of the family standard.

II. BACKGROUND

1. ROLE OF COMPANION ANIMALS

   (1.) The Longstanding Association Between Humans and Companion Animals

   All over the world, humans have valued their companion animals for thousands of years. Archaeological evidence suggests that domestic wolves and humans coexisted in settlements as far back as fourteen thousand years ago, perhaps due to their shared need for shelter, food, and protection. (9) Dogs and cats have assumed crucial roles in the lives of humans for thousands of years, one of the earliest roles being the contribution to the development of agricultural communities. (10) Although companion animals served subservient roles to human masters initially, they have continued to evolve to reach a status and value as companions to their human owners. (11) The court in Rabideau v. City of Racine recognized this longstanding association between dogs and humans:

   Archaeologists have uncovered a 12,000-year-old burial site in which a human being and a dog lay buried together. "The arm of the person was arranged on the dog's shoulder, as if to emphasize the bonds that existed between these two individuals during life." Dogs are so much a part of the human experience that we need not cite to authority when we note that dogs work in law enforcement, assist the blind and disabled, perform traditional jobs such as herding animals and providing security, and, of course, dogs continue to provide humans with devoted friendship. (12) Throughout history, humans have domesticated animals for utility and pleasure. Rather than being treated as a member of the family, companion animals historically served a variety of roles, participating in activities such as hunting, guarding the household, herding livestock, or most recently, providing service in the workforce or assisting the disabled. The human-animal bond has developed and evolved so drastically since the beginning of domestication that the emphasis is now on the companionship that the animal provides.

   Perhaps the strengthening of the bond between humans and their companion animals is due to societal changes. In a world that is full of chaos and stress, the companionship of an animal may provide an owner with a sense of relaxation and replenishment. (13) Dogs and cats have been said to "generate whimsical humor, curiosity, enthusiasm, and a sense of possibility." (14) The bond between a human owner and companion animal is certainly unique and sometimes serves as the most stable and uncomplicated relationship in a person's life. This bond shared may even be therapeutic for some companion animal owners. Furthermore, some companion animal owners have said that their goal in life is "to love and be loved by a human as much as they love--and are loved by--their pet." (15)

   Literature, movies, television, and even science have illustrated the beloved and useful role that companion animals have played in the lives of humans throughout history. The court in Travis v. Murray illustrated this when saying:

   From Odysseus's ever-faithful dog Argo in Homer's The Odyssey, to the all-American collie Lassie, to the Jetsons' futuristic canine Astro, to Dorothy's little dog Toto too.... And in real life, where would we be without St. Bernards and their casks of brandy...