Family Law

Who Gets Fluffy in the Divorce?

By ckramer

There is plenty of precedent when it comes to custody battles over children of a divorce, but a new type of custody battle is on the horizon for many divorcing couples: pet custody.

Increasingly, the question is arising as to how to treat a pet when both sides of the couple have emotional attachments to that pet, and both have a stake in taking it with them. Should a dog or a cat be treated as a child would in a divorce case?

KATU in Maryland takes a look at this question, after a Maryland judge ordered shared custody of a dog in a divorce case.

Before this ruling, pets were treated as property, and therefore the pet either goes fully to one party or another, or it is sold and the proceeds are split down the middle. But more and more, people physically and emotionally treat their pets as a part of the family.

When it comes to pets in a divorce, the demands on divorce judges, therefore, are changing. The Maryland decision is one legitimate indicator of the shifting attitude.

Gail Myers is one divorcee who put custody of her dog ahead of most other property concerns when she decided to split from her partner.

?I don?t have any kids,? she told KATU, ?so [her dog Lucky] is the closest that I am going to get to having a child. I have another dog as well. They are both like my kids.? When Myers decided to go through with the divorce, she did not take much with her, and had little regard for physical property. ?My clothes, a few personal items, and the dog. That?s all I wanted,? she said.

The problem was that her ex-partner also wanted Lucky the dog. Therefore, contentions arose about who would be able to take the dog, or what the arrangements might be that would mirror a custody conflict over a child. The divorce that began as a no-contest separation was about to become what the article refers to as ?a testy battle? over the fate of their pet dog.

In the state of Maryland, as in other states, a pet was considered on the same level as a car or a house, deemed by the law to be a piece of property. There wasn?t anything in the law about creating visitation rights that can be upheld when it came to a piece of property.

The issue, then, was whether to treat the dog as a piece of property, as a child, or somewhere in between.

Maryland Judge Graydon McKee opted to treat the pet as more of a child than a lawnmower.

He determined that it wouldn?t be fair to order the couple to sell the dog and split the proceeds. Instead, he ordered joint custody.

Lucky will go to one owner for six months, and the other for another six months.

While there are certainly details to be worked out, and limits that will likely be set, the decision could open more doors in the divorce process involving pets. The decision simultaneously acknowledges the emotional attachment that owners have with their pets, but it also could complicate proceedings.

?It would certainly complicate divorce litigation, clearly,? said Marlene Eskind Moses, of the American Academy of Matrimonial Lawyers. ?It would be a time-consuming proposition.?

Full post as published by The Divorce Blog on August 06, 2010 (boomark / email).