Legal Beagle: How Much is that Doggie in the Window?

I write a column for the writing group Romance Writers of Australia (about laws that might be of interest in our writing). A recent topic was about custody of pets. And here it is!

Daphne Dane (not for sale, by the way!)

How much is that doggie in the window, the one with the waggly tail,

How much is that doggie in the window, I do hope that doggie’s for sale …

In a recent divorce case, a husband offered his wife $20,000 in consideration for her agreeing that their dog would live with him. Her response? That no amount of money could induce her to hand over the dog, because it would be like selling a member of her family. In the case of a much loved animal, horse or dog or cat or goat or guinea pig, I think many of us can relate to this sentiment.

So … what happens to a pet that both parties want to keep when a couple separate? Who gets custody? There are marked differences between the law in Australia in this area, and some States in the US, so if you’re setting your story in another jurisdiction, take care to check the law there. This month’s Legal Beagle will look at Australian law first, and then the law in the US, because there’s a chance that Australian law might eventually head in this direction.

Case scenario: Jacquie and Jonathon have been married for thirty years, but have recently separated, and have applied to the Family Court for a divorce. Their adult children left home years ago, but they still have a family dog, JimBob, a five year old Staffie. Jacquie bought JimBob for her and Jonathan’s twenty-fiftieth wedding anniversary, but the dog is registered with the local council in her name. She takes him for walks occasionally, buys his flea and tick treatments, feeds him, cleans up after him, and takes him to the vet when necessary. JimBob is a lazy dog, and his favourite activity is to sit on Jonathan’s knee while he watches West Coast Eagles AFL games, and the cricket (particularly five day test matches). JimBob sleeps on Jonathan’s side of the bed.

Both Jacquie and Jonathan want JimBob to live with them, and each thinks this arrangement will be in JimBob’s interests. As this matter relates to divorce, it will be regulated by the Commonwealth Family Law Act 1975 (this Act applies to all states and territories): Click here for the legislation!

The law in Australia wouldn’t decide this case as a custody matter, because pets under the law are considered items of personal property (a chose in possession, to use the old fashioned term). This means JimBob’s ownership, and who he lives with, will be treated in the same way as furniture, tools, a computer or any other property asset. The concept of who owns the ‘property,’ and the economic value of the ‘property,’ will be taken into account by the courts in assessing who gets what when other property is divided up. Unlike children, there is no legal framework for dealing with custody or living arrangements for a pet, so if this matter goes to court, JimBob will be just another item on a list of property assets.

But before a matter gets to court for a property division, what if Jonathan takes JimBob to live with him in WA (Jacquie stays in SA)? To have JimBob returned to her care, she would have to apply to court for his ‘recovery’ (in the same way she’d petition the court if Jonathan took her late grandmother’s Lladró collection). If JimBob is still living with Jacquie, but she is concerned that Jonathan might take him out of her garden while she is at work, she could apply to the court for a ‘Declaration,’ a court order setting out a decision regarding the correct law on a matter.

Is there a way to avoid court and the associated expense and emotional turmoil? Ideally the parties come to an informal agreement. And if that isn’t achievable, mediation may be possible. The only trouble with agreements and mediations however, is that they aren’t legally enforceable, so the only way to have certainty is by going to court and applying for a Consent Order (where the court approves an agreement between the parties, so it has the force of a court decision). Alternatively, one or both parties apply to the court for a Property Order, which deals with all the property. The facts set out above (who feeds JimBob, who has the greatest attachment to JimBob etc.) would help a court to decide who is most attached to the ‘asset,’ and who has the best claim over it.

What would happen if Jonathan and Jacquie had dependent children? Children will be relevant in deciding the living arrangements of a dog, because the ‘best interests of the child’ will always be foremost in a judge’s mind. There have been cases where a judge has decided that the pet should remain with the children, and this means the pet goes wherever the children go. The dog is still seen as ‘property,’ but property that is important to the emotional wellbeing of the child. This is an approach that Jonathan and Jacquie might favour anyway, because they’re likely to love their children and their pet.

Now for a quick look at US law: An act was recently passed in California, which differentiates companion animals from other types of property, and allows people to apply for sole or joint custody of a pet. The judge will decide the case based on the ‘best interests of the animal’ (in the way the court decides a case in the best interests of a child. See: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2274

In Alaska, the law states that a court has to take an animal’s welfare into consideration if parties separate (so the consideration is what is best for the animal, not the owners). A judge may also assign joint custody. If one party refuses to hand over possession in the case of joint custody, the court can order them to do so. There are many thought provoking cases in this area, and plenty of scope for conflict as well!