70% of U.S. households own a pet. Thirty-five years ago it was 56%. Today only 40% of households have minor kids and that number is slowly shrinking. So, if you are a family lawyer looking at the future of your custody practice, animals are on the rise.
But, wait. In Pennsylvania and most other states, pets are considered personal property. While there are animal protection statutes regulating safety and transactions involving animals, there are no laws specifically related to deciding who gets “custody” or ownership of an animal. Animals can also be the subject of a trust under 20 Pa.C.S. 7738.
Meanwhile, if you have been to the grocery store or HomeGoods recently, the importance of a happy pet is apparent by the shelf space now devoted to elevated stainless dog bowls and aerobic scratching posts. When I watch television today, I am reminded hourly how rude it is to order my own salmon from Alaska while “Oliver” survives on Friskies Pate Salmon at a buck a can.
This is a country that is mad about pets. We have almost twice as man per household as our European cousins. But when people who are mad about pets separate, they tend to get “mad” about pets. The 1988 Amendments to the Divorce Code opened the door slightly to encouraging pet wars when it enacted a law permitting “interim distribution” of property, including personal property……chattels….. pets.
Thus began a kind of tug of war in the legal community. Many judges in Pennsylvania responded poorly to petitions seeking interim orders dividing pets. The typical refrain; and a fair one, goes: “Counsel, I have three custody trials underway; seven more awaiting hearing and I am managing 100 juveniles in my spare moments. I am not going down that “rabbit” hole (i.e., animal custody), counsel. It will have to wait until we divide the rest of the property.”
It is about this time that the lawyer can feel the client’s fingers digging into his arm with anxiety. Whatdayamean wait? “She doesn’t walk the dog.” “He doesn’t give the dog her medicine.” Even when the parties agree to divide time with Fido, the lawyer hears that when the dog gets sick, “He leaves turns over the sick dog so I have to take it to the vet and lay out the $200.”
Every year more and more time is devoted by lawyers to pet custody. And, candidly, it is not productive time. Almost every person has owned a pet, so we all know how attached we become to them. But where custody evaluations or even listening to anecdotes about how children are treated informs lawyers and courts about who may be a better parent, pets don’t speak. Not even to therapists. And certainly not to judges. So, a canine or feline custody trial often boils down to two highly conflicted owners dishing about how the other doesn’t really love the pet as much or feeds the dog “dry” food. You won’t find judges saying this but in child custody cases the decision comes down to whether the judge “trusted” mom or dad to raise a child who might become a responsible adult. You can’t do that with animals. They grow up too fast and part of their charm is that animals are irresponsible.
So, what is the answer? Frankly, what’s needed is a pretty standard agreement which contains the following elements.
- If the owners of a pet acquired during the marriage separate, the pet will spend one week with each party until an arbitrator decides differently. If, for whatever reason an owner does not take his/her week, he/she will pay $50 (you fill in the price) + any routine pet sitting or veterinary bills which are incurred during that week.
- A pet loving lawyer or other disinterested party will be appointed to decide contested pet issues by arbitration that is binding and unappealable. One round of litigation is enough and, frankly, I have not and don’t expect to see any pet appellate work that doesn’t involve a thoroughbred or some other “income producing” pet. Each party will pay half the arbitrator’s fees and 100% of the cost of enforcing a fee payment that is not paid.
- The arbitrator can award uneven time with the pet where he/she is persuaded that the pet is being dumped with a third party (“I would rather see Fido in a kennel than with you”) or the arbitrator believes that the animal is not receiving adequate care in one household. That’s not a better care standard; just adequate.
- Issues related to animal custody should be heard expeditiously by the arbitrator. Those issues include contests over spaying and breeding and may include income and expense related to those issues. All animal custody issues should be presented in a written form with a written answer to the “issue raised” within such time as the arbitrator decides. No matter shall be “heard” by live debate lasting more than 30 minutes per side except by agreement.
- The arbitrator shall be authorized to impose sanctions for non-compliance. If the cat is not returned or there is some other malfeasance, the award should be substantial and imposed at a daily rate. Catnapping must be punished severely.
- Where there are veterinary issues or life/death matters relating to the pet, the arbitrator shall rule and issue that in writing.
To those who own pets these issues are very important. But we have a judicial system that in 2021 took in 200,000 new family related cases; 38,000 abuse cases, 113,000 support cases, 42,000 custody cases and 11,000 juvenile matters. If Pennsylvania has 5,000,000 households, there are around 3,500,000 pets. Courts devote time to child custody related issues because those children will spend an average of 78 years on this planet. The average pet will max out at 15 and cause far less mischief than a child raised “wrong.” Animal cases are less complicated and typically do not require the same kinds of deliberations. Arbitration offers both pets and their owners the peace of mind they deserve. Just do it and thus save yourself money and your pets and your attorneys needless angst.