Article: the Unexpected New Frontier in Property Law: the Most Contentious New Question in Domestic Litigation May Be. . . "who Gets the Dog"?
| Publication year | 2023 |
| Pages | 17 |
March, 2023
by Aaron S. Bartholomew and Sharon Yamen
We in the twenty-first century do love our pets. Celebrities bequeath their fortunes to their pets. Dogs and cats - animals perfectly capable of walking themselves - are "walked" in strollers like a newborn baby. There are pet hotels, pet insurance, pet vacations, gourmet pet food, pet clothes, pet carriers, and the list goes on and on. The relationships between domestic animals and "their humans" have become so interconnected and involved that social scientists now study what they term "pet culture." David D. Blouin, Understanding Relations between People and their Pets, 6 SOC. Compass 845, 856-69 (Nov. 2012), https:// compass.onlinelibrary.wiley.com/doi/10.1111/j.1751-9020.2012.00494.x.
AARON S. BARTHOLOMEW teaches business law at Utah Valley University and practices law from his office in Utah County focusing on contracts and real estate.
SHARON YAMEN is a graduate of Hofstra University School of Law. Recently relocated from Utah to New York, she currently consults small business start ups and is an Assistant Professor at the Collins College of Professional Studies, Legal Studies Division at St. John's University.
So, it came as no surprise when a lawyer posted the following on Instagram: "Just settled a divorce over visitation of a parrot. [The decree will provide that] [n]either may teach it negative phrases about the other. I went to law school for this." Matt Adler (@madler09), Instagram (July 7, 2018), https://www. instagram.com/madler09/?hl=en. If you feel like you need to reread the last statement, your eyes are not deceiving you. Did you ever think after all that time and resources spent on a graduate-level legal education you could possibly one day be dedicating litigation to the problem of the visitation, care, and custody of a parrot, or any pet for that matter? Although this comment may garner some chuckles, is it so farfetched to think that if corporations for legal purposes are entities acting as a single, fictional person, that pets could be as well? It begs the question, in the eyes of the law, should pets be people too, at least in how they fare in a divorce proceeding?
The Issue
With the ever-growing popularity of pet ownership and an evolving array of cultural issues discussed hereafter, the custody of domestic animals, pets, and furry friends is becoming a primary issue in divorce cases all over the country. Early in 2020, Time magazine issued an article on the growing concern, highlighting several cases that were profiled by local media around the country, including the New York divorce case of Paul Giarrusso and Diane Marolla. Melissa Chan, Pets Are Part of Our Families. Now They're Part of Our Divorces, Too, Time (Jan. 22, 2020, 6:31 PM), https://time.com/5763775/pet-custody-divorce-laws-dogs/. "These dogs are like kids. ... They're everything to me," Giarrusso said. Id. His ex, Marolla, felt the same way: "I will compromise everything," she said in the interview, "but I won't compromise these dogs." Id. And they meant it too. See id. Custody of their sixteen-year-old miniature Italian greyhound and fourteen-year-old dachshund-chihuahua mix was the issue of their divorce case, and they spent thousands of dollars litigating it all the way to the New York Supreme Court. Id. Their case has all the hallmarks and outcomes of a highly contentious child custody case, complete with weekly visitation orders. See id.
The way these litigants view their pets is no longer an oddity or unique, and presently courts are ill-equipped to deal with these issues. Over the last ten years, a few states have tested the waters in creating statutory schemes to deal with the regular stream of cases requiring guidance and tests to resolve questions of custody over domestic animals.
What was a stream, may be turning into a flood. During and since the pandemic, society has become more acutely aware of the important bond between people and their domestic animals, and the rate of pet ownership has been steadily increasing. While so many lived with isolation, regular contact with their pets became a primary source of comfort and socialization.
The issue of custody of animals in divorce cases is not a blip on the radar or a novel issue that will silently disappear from courts' dockets anytime soon. If anything, it is becoming a primary issue in every divorce case where the parties have pets. What began as an issue isolated to a few states' legislatures is now one being raised in courts and legislatures all over the country, and Utah may be next.
Pet Ownership Popularity
The nuclear family is a thing of the past, starting with a generation of millennials chipping away at its core meaning and defining "family" outside of what have been traditional and societal norms; many millennials view the concept of family as something wholly different. Lily Velez, As Birth Rates in US Plummet, Are Pets Standing In For Children?, VETERINARIANS.ORG (Nov. 2022), https://www.veterinarians.org/birth-rates-in-us/ [hereinafter Velez, Pets Standing In For Children ]. The standard notion of getting married after college, having two kids and a house with a white picket fence, is delayed or does not happen at all. Family is now in the eye of the beholder, defining for one's self what it means for...
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