Pets Should Receive Special Consideration in F.S. Ch. 61, Dissolution and F.S. Ch. 741, Domestic Violence.

• Author: Downey, Margherita

"Laws should be like clothes. They should be made to fit the people they are meant to serve."--Clarence Darrow

As of March 2019, according to U.S. statistics, ownership of family pets in the U.S. has increased significantly from 2017. Cats and dogs were the second and third most owned pets, with around 94.2 million cats and 89.7 million dogs, respectively, living in U.S. households. (1) This is an increase in cats and dogs from 2015-2016. Per the American Pet Products Association as reported by the ASPCAin 2017, the estimate was that "85.8 million cats and 78 million dogs were owned in the United States." (2) Hence, approximately 44% of all households in the U.S. have a dog, and 35% have a cat. (3)

Clearly, pets have assumed a larger place in people's lives and hearts than ever before. Additionally animals have increasingly been recognized not just as loyal companions with whom we form emotional and psychological bonds, but as service animals who provide help in navigating daily life activities. "Dogs have been guiding the blind, comforting the sick and calming the distressed for more than a century," (4) and today owners of dogs and other service animals are given greater rights under the law. F.S. [section]413.08 (2019), entitled Employment and Related Services for Persons with Disabilities, has expanded to permit service animals in all places the public is invited. (5) However, [section]413.08 narrowly defines "service animals" as trained dogs and miniature horses and excludes "emotional support" animals. (6)

In Florida, the enormous value of emotional support animals has been codified in F.S. [section]92.55. The Justice's Best Friend Act permits facility dogs or therapy animals to appear in court for judicial or other proceedings. (7) Their purpose is to accompany and calm victims and witnesses--specifically, children and persons with intellectual disabilities--in court cases of abuse, abandonment, and neglect.

Similarly, federal regulations on animal rights and welfare have expanded in the U.S., and these rights have been extended in scope to meet the needs of the disabled. As one example, the U.S. Department of Transportation (DOT) Air Carrier Access Act broadly defines a "service animal as any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support." (8) Accordingly, the DOT regulates and permits service and emotional support animals to travel on aircraft with their owners. (9)

Beyond the relatively narrow category of service or emotional support animals, the law is also giving greater rights to pet owners and greater protection to pets in other areas. Recognizing the demand to protect an owner's "fur children" upon the owner's death or disability in 1990, the National Conference of Commissioners on Uniform State Laws changed the Uniform Probate Code (UPC) to allow for the creation of "pet trusts." (10) Since then, all 50 states, including Florida, have adopted pet trust statutes. (11) Such trusts are valid for the lifetime of the pet.

In spite of this progress, there are two areas of Florida law where protection and the rights of pets and their owners is woefully lacking--family law cases involving divorce and cases of domestic violence. This article is a follow-up to Professor Timothy L. Arcaro's article in the June 2017 Florida Bar Journal, "Should Family Pets Receive Special Consideration in Divorce?" (12) Given the integral role pets play in our lives, the demand is great for pets and service animals to be given special consideration in our family law statutes, just like the changes provided in Florida's Probate Code.

Marital Dissolution

In 2017, there were 3.6 divorces per 1,000 inhabitants in Florida. (13) More startling is the finding of a recent poll: "Children in the U.S. are more likely to grow up with a pet than with a father." (14) These statistics should raise concern among legislators, litigants, jurists, and family law practitioners on the importance of the family pet and the growing need to expand the law on the protection of and fate of our beloved pets.

At present, Florida family law considers family pets to be "personal property." Thus, when a divorce is filed, pets are presumptively subject to an equitable distribution of personal property as set forth in F.S. [section]61.75. (15) Chapter 61 does not specifically address pets or provide guidance on how to resolve disputes regarding their fate when the family breaks up. (16)

It is longstanding Florida law that jurisdiction of children's issues is subject to regulations under the Uniform Child Custody Jurisdiction and Enforcement Act, which is codified in F.S. [section][section]61.501-61.542. Furthermore, family court judges are required to make detailed findings of fact in their judgments, with a mandate to consider the best interests of the children in awarding parental access (17) --specifically, in determining if the children are best served with the parents having equal timesharing or whether granting one parent a greater parental role after divorce is best. (18) Moreover, children's issues are subject to post-judgment jurisdiction, such as modification of access, relocation, and child support. (19) There are now additional, detailed regulations on a parent's request to relocate greater than 50 miles from the child's legal residence. (20) In contrast, equitable distribution as set forth in [section]61.75 is designed to be a final conclusive distribution of assets and liabilities. Family courts retain post-judgment jurisdiction solely to...