Dogs & Divorce, 0520 SCBJ, SC Lawyer, May 2020, #52

• Author: By Tasha J. Kotz
• Position: Vol. 31 Issue 6 Pg. 52

Dogs & Divorce

No. Vol. 31 Issue 6 Pg. 52

South Carolina BAR Journal

May, 2020

By Tasha J. Kotz

Being a family law attorney, I often get asked, “Do you have children?” And whether it’s to a client or fellow attorney, my reply frequently goes something along the lines of: “I do not have children, but I do have a dog, and I believe I would fight just as hard for my dog as you do for your child.”

How family law treats dogs in divorce actions: The general rule

Under common law, dogs are property.^[1] Taking them without consent of the owner can be a criminal offense. However, under property law, a dog is no different than your everyday couch. For centuries, the law has treated pets as property and not as “people.”

The Texas Supreme Court recently emphasized this legal position in a case that began with an acknowledgment that Texans love their dogs but held that no emotional-related damages may be collected by a plaintiff for harm to a dog.^[2] Meaning, the only damages a court can award for the killing or taking of a dog is the retail value of the dog. “[T]he human-animal bond, while undeniable, is uncompensable . . . . We understand that limiting recovery to market (or actual) value seems incommensurate with the emotional harm suffered, but pet-death actions compensating for such harm, while they can certainly be legislated, are not something Texas common law should enshrine.”^[3]

The law is no different when it comes to divorces. Your dog is put into the same category as other marital property, gets divided with the marital assets, and no regard is given to which party has what relationship with the dog or which party may love the dog more. There is no requirement for the family court to take into account what is in the best interests of the dog when deciding where the dog shall live post-divorce.

Science confirms dogs and their humans form strong familial bonds

Science has confirmed a couple of things: • Unlike your everyday couch, dogs are alive; and

• Perhaps akin to some couches, but far more often, people form emotional attachments with their dogs;

• This emotional attachment is often a strong bond, resulting in grieving upon the loss of a dog, and fears that a dog may be mis-treated or stray from home;

• This emotional attachment runs in both directions.

The law ignores all of this and keeps dogs in the status of property. Strangely enough, the family law’s treatment of dogs as property ends with the civil law. States and their subdivisions routinely investigate a person who applies to adopt a dog at a government-run shelter. If a person is cruel to an animal, that person is subject to criminal charges, or in another example, experience interruption of their career in the National Football League. In other words, the state laws will deny individuals their liberty because of their mistreatment of a dog, motivated entirely by concern for the dog’s welfare, but that same welfare is ignored in divorce cases every year.

Divorce law, in 47 states, remains unchanged. No attempt has been made to impose a custody decision, and nothing in South Carolina law prevents placing a dog with a divorcing party, at least in the absence of a history of dog fighting or other abuse.^[4] Our family courts are permitted to order that a dog, no matter how beloved, be sold and the proceeds of the s ale divided amongst the divorcing parties.

Determining a dog’s best interests

While determining the best interests of a dog is not easy, and arguably not objectively possible, and while it would increase the investigative burden of our family courts, the burden I would imagine is not too different from what courts must do with children.

An early example of the pursuit of “dog custody” in a divorce case 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 divorce court heard evidence from an animal behavioralist and reviewed a video presentation, entitled, “Day in the Life of Gigi.” The video depicted scenes of Gigi sleeping under the wife’s chair and cuddling with her. The wife was eventually awarded custody. In making this decision, there was no legal principle revised nor is there an appellate decision to cite. However, reports of the case appeared in The New York Times.^[5]

In 2014, Vermont became the first state to revisit its laws about the proper status of dogs in divorce cases. The Vermont Supreme Court held, in Hamet v. Baker, 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 called it yet, a dog custody determination: “[W]e hold that the family division may consider other factors not set out in the statute: the welfare of the animal and the emotional connection between the animal and each spouse.”^[6]

The Hamet case was not an easy case for the trial court to decide. There was no evidence presented to the court indicating any allegations of animal neglect or abuse, and no one presented a choice where one party was largely indifferent to the dog.^[7] Fighting a case that involved no children and no property disputes to...