Brown & Associates - Attorneys & Counselors at Law, P.L.L.C.

PETS ARE BIG NEWS
(8/11/02)

In case you haven't noticed, America is a society of pet lovers. In fact, many pet owners are so zealous in their love of their pets that they have broken off engagements, changed employment, and even gone to court over custody and visitation issues.

Pet Wills

Although I haven't done a lot of them, on more than one occasion I have been asked by a client to be sure his or her pet is properly cared for once the owner is gone. I have set up trust funds, identified "guardians,"and even made arrangements to leave a large estate to charity in return for the charity's promise to provide a loving home for the client's pet after she was gone. Some of my clients are more concerned with the future well being of their pets than of their children. In a way, it makes sense. Children, especially if they are adults, are able to care for themselves. Pets, on the other hand, are at the mercy of whoever provides them food, shelter, and hopefully affection.

Visitation Rights?

Recently, this phenomenon was taken to a new level. Visitation rights anyone?

Any attorney who has practiced law for some period of time has been confronted with the custody issue. I have had clients who had no trouble compromising over family heirlooms and child custody, but came to blows over custody of the pet cat, dog, horse, and even a rabbit.

To many of you, this probably borders on the sublime or ridiculous. Actually, it just follows a trend in U.S. Law. Not too many years ago, there was little discussion, let alone litigation, over custody or visitation of minor children. As our Country matured, we began to recognize children were people, too, and the Courts began looking at the facts of each case, rather than rubber stamping the mother's automatic custody of the minor child. Now it isn't unusual to have a court appoint a guardian ad litem to protect a child's rights in divorce and other related cases. In some jurisdictions, the court will appoint an attorney to represent the child's interest, as well.

Pets' Rights

In more recent times, animal rights groups have become adamant in their protests against eating meats, wearing furs, and using animals for medical research. It's not too far fetched to see the rights of pets rising to the same "best interest" standard that we currently apply to the custody of children. That time isn't yet, however.

Are Pets People or Property?

Pet owners may bury them in fancy animal cemeteries with headstones, protect them from the elements with their own mittens, caps and overcoats, and even put them up in four-star animal hotels or have them treated at exclusive "animal hospitals,"-- but at least according to the State of Pennsylvania, dogs are still dogs.

A recent case centered around a Golden Retriever-Labrador mix named Barney. Lynda Hurley Pritchard acquired Barney in 1994. A short time later, she separated from her husband Anthony DeSantis and six years later they were divorced. Pritchard was given full custody of Barney and DeSantis was granted visitation rights.

Five months after the divorce became final, Pritchard and Barney moved away, making it more difficult for DeSantis to exercise his "visitation rights." He put up with this for a year and then filed suit seeking shared custody of Barney. The trial court dismissed the case and De Santis appealed to the Pennsylvania Superior Court.

The appellate court chose to disregard the language in the couple's separation agreement. Instead, it held that dogs are "property," not children, and are not subject to visitation rights. Judge Frank J. Montemuro wrote:

Appellant appears to treat Barney, a dog, as a child. Despite the status owners bestow on their pets, Pennsylvania law considers dogs personal property. Appellant is seeking an arrangement analogous-in-law to a visitation schedule for a table or a lamp.

Pets--an International Issue?

Even though the Pennsylvania court ruled against visitation this time, the issue isn't dead. Roza Gossage, an Illinois attorney, predicts we will have animal behavior testing, pet support, visitation, splitting of veterinary bills, and clauses in marital settlement agreements relating to the "pick of the litter" and even exchange of visitation at visitation exchange kennels.

Switzerland has taken up the cudgel. There, a referendum proposed to give pets the same legal rights as those granted to children in divorce cases and asserted that custody of a pet should be awarded based on the pet's "best interest."

None of this may be as far fetched as it sounds. A Judge in Ottawa, Illinois had the parties stand at opposite ends of the room and call their dog. He then awarded custody to the one who was "chosen" by the dog. Makes you wonder who had what in his or her pocket, doesn't it?

Pet custody issues are so popular they have their own website at www.petcustody.com. It offers such things as an addendum you can add to your separation agreement or divorce decree to provide for your "animal companion." The addendum identifies the criteria to be used in resolving custody and other issues.

Who knows how far this phenomenon, will go? Roza Gossage asks, "how can the court handle an interview of the pet? And will it be required?" Don't laugh. The future is just around the corner.

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