BY BARBARA J. GISLASON
It is well-known that about 67 percent of U.S. households have pets, and expenditures on them exceed $72 billion per year.1 Following Hurricane Katrina, according to one poll, 93 percent of pet owners claimed they would risk their lives for their pets.2 Consider these developments against the backdrop of the 1897 landmark decision of Sentell v. New Orleans Carrollton Railroad Co.3 According to Sentell, dogs, in particular, were “quasi-property” unless subdued or dead. Now that more than a century has passed and rabid dogs are rare, there are many indications that dogs are beginning to enter the family unit. This can be better understood by seeing how animal-related cases in unrelated subject matters, both within a state and across the country, affect each other. This is both a sophisticated and a complex analysis.
A predicate to the emerging view that animals are not merely property is the passage of animal cruelty laws. All states, as well as Washington D.C., Puerto Rico, and the Virgin Islands, have passed at least one type of animal cruelty felony law.4 The earliest states to pass such laws were Massachusetts in 1804, Oklahoma in 1887, Rhode Island in 1896, and Michigan in 1931. The last state to enact a law of this type was South Dakota in 2014.5 In a similar vein, a growing list of states have passed laws that enable a judge to include pets in orders for protection. According to the Animal Legal and Historical Center, 32 states had passed these laws as of 2017.6
At the turn of the last century, estate planning lawyers—aware that people could not bequeath their “property to property,” and that this limitation was concerning for their clients—brought this problem to the attention of what is now called the Uniform Law Commission (ULC). The ULC created two types of uniform pet trust laws that served as the backbone for pet trust laws passed in all 50 states. These laws are indicative of the fact that companion animals, at the very least, are distinguishable from other types of property.
On another front, the seeds were planted for setting criteria that should be applied in pet custody disputes, including what negative behaviors the judiciary and legislators would tolerate.7 Against all odds, dicta from an unpublished decision in Minnesota, Pratt v. Pratt,8 gained national attention. In that decision, the appellate court, while declining to render its decision based upon the best interests of two St. Bernards, nevertheless speculated on what the court would do if mistreatment of a companion animal was involved. The court also pointed out that the trial court had broad discretion in rendering an award if there was an “acceptable basis in fact.”9
Courts have wanted to take the best interests of animals into account as far back as 1944, when the seminal decision in Akers v. Sellers10 was issued. In that often-cited case, the court complained that on appeal, it lacked an adequate record to decide whether the lower court had rendered a “just and wise decision.” The court further stated, “Whether the interests and desires of the dog, in such a situation, should be the polar star pointing the way to a just and wise decision, or whether the matter should be determined on the brutal and unfeeling basis of legal title, is a problem concerning which we express no opinion.” More so, the court went on to opine that it would be a tragedy to award the Boston Bull Terrier to one party when the affection and loyalty of the dog lay with another.
In a post-decree cat custody dispute, Raymond v. Lachman,11 the New York court in 1999 issued a decision using best interest criteria for a cat named Lovey. There, the court recognized that not only could an owner love their cat, but that the cat could love them back. Ultimately, the court awarded Lovey to the party who had the house where Lovey had long lived, and where the cat prospered.
A case from New Jersey, Houseman v. Dare,12 exemplifies how the courts, dealing with legal issues of first impression, have looked to a variety of well-reasoned animal law decisions across states as well as subject areas. Following their breakup, an unmarried couple effectively had shared custody of their Pug, Dexter, until one of them decided to keep the dog. The appellate court found that the underlying oral shared caregiving agreement into which the parties had entered following separation was enforceable. The higher court explored the contours of laws affecting companion animals and opened the door for the trial judge to render a joint physical custody decision, which the court effectively did.
Another influential case where the court undertook a sweeping analysis of national jurisprudence was New York’s Travis v. Murray.13 There, in a dispute about a Miniature Dachshund named Joey, the court reasoned that the best standard to use for rendering a decision could be included within an over-arching “best interests for all” standard.
As these decisions reflect, a lawyer handling these cases is best served by understanding the broader jurisprudence of animal law first, followed by learning how cases specifically affecting companion animals are differentiated. It is also wise to monitor what is happening in the state of Oregon, where forward-thinking jurists are looking at the subject of property in new ways in animal cruelty cases.14
In 2016 and 2017, respectively, Alaska15 and Illinois passed statutes explicitly allowing the courts to utilize a type of best interest standard, or well-being standard, for a companion animal as a factor in the courts’ decision-making.16 Since then, a law in a similar vein was passed in California in 2019.17 The California statute also enables courts to implement shared custody agreements. It will be interesting to find out how these laws affect outcomes not only in pet custody awards in these three states, but also in disputes outside of family court jurisdiction and across state lines.
Pet custody disputes, outside of family court, can arise when two people cohabitate, between family relatives, and in instances where animals are lost, found, fostered, or relinquished, to name a few. These cases typically arise as replevin actions or the more modern cease-and-desist actions.
Pet custody disputes constitute an area where pioneering efforts matter. It is important to develop pet-friendly presumptions and best interest and wellness-based decision-making criteria. Enlightened judges may help further craft groundbreaking principles. We are just learning, too, how to resolve these types of disputes in Alternative Dispute Resolution processes.
The national trend regarding companion animals is to treat them as family members despite their “property” status, although, upon a closer look, judges seem to interpret evidence of donor intent or evidence of abandonment in such a way as to promote a common sense outcome, as envisioned in Travis v. Murray,18 even if the utilization of this more kindly analysis is never expressed. Accordingly, courts are looking beyond the purchase price and financial support of the animal and inviting evidence about the care of an animal, bonds of affection, and mistreatment of the animal, if not the animal’s best interests or well-being.
BARBARA J. GISLASON is the author of Pet Law and Custody: Establishing a Worthy and Equitable Jurisprudence for the Evolving Family, which is an American Bar Association best seller, the founder of Animal Law in the American Bar Association, and a nationally recognized animal law expert. The book can be ordered by going to: http://bit.ly/2xPW5Lr. Gislason practices in the areas of Family Law, Animal Law, and Intellectual Property Law in Minneapolis, Minnesota.
1 National Pet Owners Survey, American Pet Products Association; the report is not publicly available, but key results are summarized at “Pet ownership, spending going strong,” American Veterinary Medical Association News (5/8/2019) https://www.avma.org/News/JAVMANews/Pages/190601d.aspx
2 2004 U.S. Companion Animal Owner Survey, Faunalytics, https://faunalytics.org/american-animal-hospital-association-2004-pet-owner-survey/ (last visited 4/17/2019).
3 166 U.S. 698, 703 (1897). The Minnesota Supreme Court, in Saw v. City of Lino Lakes, 823 N.W.2d 627 (Minn. 2012), relied upon this old analysis crafted when dogs were often rabid.
4 A good example of how the animal cruelty statute is applied in Minnesota is State v. Bell, 2014 WL 5314457, No. A14-0137, 10/20/2014.
5 South Dakota Passes Law to Make Animal Cruelty a Felony, DVM 360 Magazine, http://veterinarynews.dvm360.com/south-dakota-passes-law-make-animal-cruelty-felony (last visited 4/15/2019).
6 Rebecca F. Wisch, Domestic Violence and Pets: List of States that Include Pets in Protection Orders, Animal Legal & Historical Center, https://www.animallaw.info/article/domestic-violence-and-pets-list-states-include-pets-protection-orders (last visited 4/15/2019).
7 It should be noted that the indicia of ownership, as illustrated in Minn. Stat. §347.22, is broader in cases involving tort liability.
8 N.W.2d, 1988 WL 120251 (Minn. App.).
9 In Boehm v. Glick, WL 1320609, A18-0941 Minn. Ct. App. 3/25/2019, the court awarded a cat to a party based upon a personal property, rather than a best interests, standard.
10 114 Ind. App. 660, 54 N.E.2d 779 (Ind. App. 1944).
11 695 N.Y.S.2d 308 (N.Y. A.D. 1st Dept. 1999).
12 966 A.2d 24 (N.J. Super. Ct. App. Div. 2009).
13 2013 N.Y. Slip. Op. 23405 (N.Y. Sup. Ct. 2013).
14 State v. Nix, 355 Or. 777, 334 P.3d 437 (2014), vacated, 356 Ore. 768, 345 P.3d 416 (2015); State v. Fessenden, 355 Or. 759 (Or. 2014); and State v. Hess, 359 P.3d 288 (Or. Ct. App. 2015).
15 Alaska is not only a trendsetter by passage of the first statute regarding an animal’s best interests, but also has some of the country’s most important pet-related case law. In the 2002 Alaska post-decree dispute of Juelfs v. Gough, 41 P.3d 593 (Alaska 2002), the court awarded a Chocolate Labrador Retriever named Coho to the party who would keep him safe, even though the parties had been awarded shared custody of the dog pursuant to the Judgment and Decree.
16 HB 147 was passed as Chapter 60 of the 2016 Alaska session laws. The Act is 17 pages long and was codified into several different statute sections. The session law citation is CHAPTER 60 SLA 16. See also Nicole Pallotta, Alaska Legislature Becomes First to Require Consideration of Animals’ Interests in Custody Cases, Animal Legal Defense Fund, https://aldf.org/article/alaska-legislature-becomes-first-to-require-consideration-of-animals-interests-in-custody-cases/ (last visited 4/15/2019); Elaine S. Povich, This New Law Aims to Prevent Couples from Fighting Over Cats and Dogs, Huff Post, https://www.huffpost.com/entry/divorce-pet-custody-dog-california_b_5c3e14f4e4b06248f31edc8b (last visited 4/15/2019).
17 Nicole Pallotta, California’s New ‘Pet Custody’ Law Differentiates Companion Animals from Other Types of Property, Animal Legal Defense Fund, https://aldf.org/article/californias-new-pet-custody-law-differentiates-companion-animals-from-other-types-of-property/ (last visited 4/15/2019).
18 2013 N.Y. Slip. Op. 23405 (N.Y. Sup. Ct. 2013).