It’s a dog’s life, whatever THAT means…

Pet dogs are more than property and less than citizens. When they become surrogate children, as they often do, the legal battles over which member of splitting couples will have custody can become as furious and emotional as anything in “Kramer vs. Kramer.” Now the Vermont Supreme Court has approved a a new approach to these cases, deciding one on the basis of “the best interests of the dog.” Here is the relevant portion of the decision, in the case of Hamet v. Baker:

The only issue in this contested divorce was which spouse should receive the family dog. Belle is an eleven-year-old German wirehaired pointer who is greatly loved by husband and wife. The parties have no minor children, and they were able to reach an agreement on the division of their property and other financial issues. They came to the final hearing for a ruling on which one of them would receive the dog in the divorce decree….

Prior to the hearing, … [t]he court stated that the primary factor for its decision would be which spouse was most active in caring for the dog during the marriage…. During the hearing, both parties testified to their strong emotional ties to the dog and to the care that each spouse provides. Husband is a veterinarian and takes the dog to work with him. Wife spends time walking the dog in the woods near her home and is very involved in daily care of the dog.

At the conclusion of the hearing, the court awarded the dog to husband. It found that either party would provide the dog with a good life. It gave a slight edge to husband because the dog is accustomed to the routine of going to the clinic every day. The court balanced that factor against the dog’s familiarity with the marital home, which the parties agreed wife would receive as part of the property settlement.

It found that husband “treats the dog like a dog,” while wife is more doting and treats the dog like a child. The court concluded that the dog would do better with husband’s balanced attitude towards the animal….

This Court has consistently ruled that pet animals are property. [See] Goodby v. Vetpharm, Inc., 974 A.2d 1269 (holding that no tort recovery allowed for emotional damages following loss of pet). But pets are different from other property. They are alive and form emotional attachments with their owners that run in both directions. Their long and intimate association with people gives rise to special concerns for their well-being and humane treatment. See, e.g., 13 V.S.A. §§ 351-400 (prohibiting cruelty to animals); 15 V.S.A. § 1103(c)(2)(G) (permitting court to include provisions concerning the possession, care and control of family pet in fashioning domestic relief-from-abuse order); 20 V.S.A. §§ 3901-3915 (regulating sale and euthanasia of animals). In most cases, they have little or no market value, but we spend generously to feed and care for them. As this case illustrates, they frequently become close companions and an important part of daily life for countless owners…

…In contrast to a child, a pet is not subject to a custody award following a determination of its best interests. Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is final and generally not subject to modification….

In the case of pets, we hold that the family division may consider … the welfare of the animal and the emotional connection between the animal and each spouse. These factors underlie our animal welfare laws and our case law, which recognizes the value of the bond between the animal and its owner. Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses….

Despite the family court’s statement prior to trial that it was primarily concerned about which spouse provided the most care for the animal, the testimony included a full account of the important role that the dog plays in the lives of both spouses…. Since the record was undisputed that both parties were extremely attached to the dog, it would have been difficult to determine which spouse had the stronger connection. While the family court could consider both welfare and emotional ties in awarding the dog to one of the parties, it had discretion to decide what weight to give to these factors.

The family court recognized how much the dog means to both parties. It is clear that her primary concern was the treatment of the dog. This was an appropriate factor upon which to base the decision. The court’s specific findings about Belle and her owners are supported by the evidence. The factors the court considered — the dog’s welfare and its emotional relationship with the parties — are the same factors that we recognize today as appropriate for the resolution of similar questions in the future. Accordingly, we affirm the court’s decision to assign ownership of the dog to husband….

I’m sure PETA is applauding this decision, but I have  problems with it. I agree that there should be a threshold determination of whether both parties have a lifestyle that will support responsible care for the family dog, and that the custody of a family dog isn’t being used as a vengeful measure regardless of its effects on the dog’s welfare. Once it is determined, however, that both parties genuinely seek to have the dog in their care for companionship, have the capability of providing competent and responsible care, and have no record of animal cruelty or neglect, then the issue should revert to one of property and relative fairness to the parties seeking custody.

The lower court awarded custody based on the showing that, in the judge’s view, the husband “treats the dog like a dog,” while the wife is more doting “treats the dog like a child.” How does the judge know whether a dog likes being treated like a dog better than being treated like a child? The judge also cannot know which of the individuals, if any, the dog enjoys being with or is more loyal to. The dog can’t testify. The decision reflects the judge’s preference, not the dog’s, and it also seems to carry a gender bias. Women tend to be maternal toward their dogs; I know my wife tends to speak to our dog as if it were her child. My son treats him like a baby brother; I treat him like a dog that I love very much. Which does the dog prefer? Which is better for him? I have no idea at all. Neither does Rugby, I expect, and neither does the judge. He would be equally safe, well-cared for and happy in the custody of any of us, but how is more careful and meticulous about vet visits, medications, and other routine care? My wife is, just as she was as we were raising my son. Would a female judge have reached the same conclusion regarding the better dog owner? I wonder.

The problem with the Vermont precedent is that it opens the door for protracted arguments in court over what is in the best interest of dogs, and worse, a particular dog, with much of the opinion being like the judge’s in this case: human speculation about an alien creature whose brain is not wired like a human’s. I can see future dog custody cases involving edge behavior experts, breed specialists, and dog whisperers. I can see court ordered demonstrations where a jury judges which owner the dog runs to first, or wags harder for. Is either owner likely to get another dog? Will this dog be jealous? Is the breed jealous? Does on owner provide more treats? Will the dog get fatter with one owner than the other? Is it better for a dog to be healthy, or happy? Is that question to be answered from a human perspective, or from a dog’s? My experience with Jack Russells, for example, suggests that their philosophy  is to live fast, die young, and leave a good looking corpse.

Courts are there to decide human controversies, not to place the speculative desires of animals over the rights and needs of humans. My guess is that in human terms, the judge made the wrong decision: the wife, for whom the dog was a substitute for a child, needed that dog far more than her ex-husband, who could always buy another wire-haired pointer. Worse,  however, is that this is a bad precedent that will only make future dog custody battles more expensive, more painful, and sillier than they already are.

________________________________

Source: Volokh (Washington Post)