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									                         STUDY NOTE
                 Fighting Like Cats and Dogs:
    The Rising Number of Custody Battles Over the Family Pet
                                 T. Christopher Wharton *


     Forget the phrase ―man‘s best friend.‖ Today, household pets enjoy increasing
prevalence as ―non-human members‖ of the modern American family. 1 Currently,
when families decide to separate, pets are classified as chattel—―no different from
the silverware, the plasma TV, and the living-room sofa‖—a classification which
seems rigid, antiquated, and ill-equipped to deal with pet custody issues.2 The legal
status of pets as mere items of personal property must adapt to meet the evolving
status of pets in modern American society. This note proceeds in five parts. Part I
introduces the conflict between the importance of pets in society and their current
legal status. Parts II and III will then review the issues presented in several historic
and modern pet custody trials. Finally, Parts IV and V analyze recent changes in
animal law and how these changes may help future pet custody disputes.

                   II. ―LETTING THE CAT OUT OF THE BAG‖

      According to a survey conducted by the American Animal Hospital
Association, eighty-three percent of pet owners referred to themselves as ―mom‖
or ―dad.‖3 The American Veterinary Medical Association (AVMA) found that of
the millions of pet owners in this country, nearly half considered their pets to be
full-fledged ―family members.‖4 The Animal Legal Defense Fund (ALDF)
reported that forty-five percent of the ―dog guardians‖ they surveyed take their pets
with them on vacations. 5 ALDF also states, ―[i]f stranded on a desert island, more
than fifty percent of companion animal guardians would prefer the company of
their cat or dog to that of another human‖ and almost the same amount of
respondents stated they would be ―‗very likely‘ to risk their lives for their

        Junior Staff M ember, Journal of Law & Family Studies; J.D. candidate 2009.
        Joyce Tischler & Bruce Wagman, Lawyers Must Plan for More Pet Custody Cases, A NIMAL
LEGAL D EF. FUND , Aug. 18, 2006,
        Jane Porter, It can be a Regular Dog Fight; Family Pets Involved in a Growing Number of
Custody Cases, HARTFORD COURTANT, July 10, 2006, at D1.
available at
        Tischler & Wagman, supra note 1, at 1.

434                        JOURNAL OF LAW & FAM ILY STUDIES                                 [Vol. 10

      For some, this may seem surprising or even a bit waggish, but the elevated
status of pets is increasingly evident; think family portraits that feature Fido, the
dog, and specially made Christmas stockings for Sox, the cat. Local ―dog parks‖
are gaining ground in the nation‘s metropolitan and suburban areas.7 ―Cat condos‖
and other cat furniture can be custom-made and designed ―not only for the cat but
also for the discriminating homeowner.‖ 8
      A press release from the American Pet Products Manufacturers Association
(APPMA) revealed that the amount of ―pet spending has more than doubled from
$17 billion in 1994 to an estimated $38.4 billion in 2006.‖9 The same source went
on to state that according to Bob Vetere, president of APPMA, ―a continued trend
in the humanization of pet products‖ is expected to increase industry spending in
the future.10 In addition, there are companies offering pet health insurance,
specialists offering advice on pet psychology, even pet chaplains and ministries
that offer bereavement resources and pet funeral services.11 These and an
expanding list of other examples illustrate just some of the efforts pet owners are
willing to undertake. But as different segments of society begin to recognize and
accommodate the deep, quasi-familial relationship shared by people and their pets,
in the eyes of the law, pets are still just personal property. 12


     For thousands of years, domesticated animals have been considered personal
property.13 In American jurisprudence, the Supreme Court articulated this view in
1897 in Sentell v. New Orleans & C.R. Co., stating that ―[b]y the common law, as
well as by the law of most, if not all, the states, dogs are so far recognized as
property.‖14 And, with few exceptions, this ancient doctrine remained
unquestioned for another century.

available at
          See Sitting Pretty Kitty Cat Furniture and Cat Trees, (last
visited Jan. 25, 2008).
          Press Release, American Pet Products M anufacturers Association, Pet Spending at All Time
High (M ar. 23, 2006), available at
           See, e.g., Liz Pulliam Weston, Should You Buy Pet Insurance?, M SN MONEY (Apr. 2008),
available at
urance.aspx (stating that ―[w]ith vet bills soaring and fancy new treatments available, it‘s an option
more owners are considering‖); see also Camille Chatterjee, Talk to the Animals, PSYCHOL . T ODAY
(M ar. 1999), available at (discussing
the rising popularity of pet therapy books and experts); Laura Leslie, Chaplains Ease the Loss of
Four-Legged Family, NPR broadcast (M ar. 20, 2006), available at
y/story.php?storyId=5290121 (reporting on ―a new breed of minister who specializes in helping
bereaved pet owners‖).
           Drake Bennett, Lawyer for the Dog, BOSTON G LOBE , Sept. 9, 2007, at 1D.
           Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 701 (1897). In Sentell, the Supreme Court
2008]                        CUSTODY BATTLES OVER THE P ET                                         435

      Ten years ago, a claim asserting a quasi-parental right to shared custody of the
family dog would have been laughed out of court. 15 But this is not to say that pet
custody cases were completely non-existent.16 In the 1944 case of Akers v. Sellers,
a recently divorced couple battled over the custody of their Boston Bull Terrier,
arguing the case up to the Appellate Court of Indiana. 17 In a surprisingly
progressive and considerate opinion, the Chief Judge vowed to approach the case
with ―full realization that no man can be censured for the prosecution of his rights
to the full limit of the law when such rights involve the comfort derived from the
companionship of man‘s best friend.‖18
      More recent cases, however, suggest the changing status of pets as more than
just man‘s best friend. 19 Another landmark decision came in the 1981 case
Arrington v. Arrington, where a Texas appeals court reviewed a custody decision
involving ―Bonnie Lou,‖ a ―very fortunate little dog with two humans to shower
upon her attentions and genuine love frequently not received by human children
from their divorced parents.‖20 The case is particularly noteworthy for upholding
Mrs. Arrington‘s designation as the ―managing conservator‖ with ―reasonable
visitation‖ rights granted to her husband—an arrangement traditionally reserved
for children.21 Nevertheless, within the context of more modern pet custody cases,
the distinction between pets and children is increasingly blurry.

             They are not considered as being upon the same plane with horses, cattle, sheep,
      and other domesticated animals, but rather in the category of cats, monkeys, parrots,
      singing birds, and similar animals, kept for pleasure, curiosity, or caprice. They have no
      intrinsic value, by which we understand a value common to all dogs as such, and
      independent of the particular breed or individual. [. . .] While the higher breeds rank
      among the noblest representatives of the animal kingdom, and are justly esteemed for
      their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their
      natural companionship with man, others are afflicted with such serious infirmities of
      temper as to be little better than a public nuisance.
         Bennett, supra note 12, at 1D; Porter, supra note 2, at D1.
         Tischler & Wagman, supra note 1, at 1.
         Akers v. Sellers, 54 N.E.2d 779 (Ind. App. 1944).
         Id. at 779.
         In Nahrstedt v. Lakeside Village Condominium Ass‘n., 8 Cal. 4th 361, 390 (1994) the court
      [T]he value of pets in daily life is a matter of common knowledge and understanding as
      well as extensive documentation. [. . .] Those who suffer from serious disease or injury
      and are confined to their home or bed experience a therapeutic, even spiritual, benefit
      from their presence. Animals provide comfort at the death of a family member or dear
      friend, and for the lonely can offer a reason for living when life seems to have lost its
      meaning [. . .]. Single adults may find certain pets can afford a feeling of security.
      Families benefit from the experience of sharing that having a pet encourages.
         Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App. 1981).
436                         JOURNAL OF LAW & FAM ILY STUDIES                                 [Vol. 10

                      IV. ―EVERY DOG HAS HIS DAY. . . IN COURT ‖
                           THE RISE OF P ET CUSTODY TRIALS

     While pet custody disputes still represent a small niche within the legal
profession, the Los Angeles Times reported a ―hundredfold increase‖ in these cases
since 1990. 22 This noticeable trend has generated interest from legal practitioners,
eager to debate the issues raised in pet custody cases, as well as media
commentators, eager to deliver the scoop to the pet-loving public.

        A. Pet Peeves: The Legal Issues Presented In Pet Custody Litigation

     In the 1993 case Bennett v. Bennett, the divorcing couple agreed to the
stipulations of a Florida district court‘s judgment of dissolution in all areas except
one: possession of the dog, ―Roddy.‖ 23 Following a hearing in which the husband
asserted his claim to the dog as a ―premarital asset,‖ the trial judge granted
possession of Roddy to Mr. Bennett.24 However, sympathetic to the wife, the court
also granted visitation rights to Ms. Bennett every other weekend and every other
Christmas.25 Both parties filed a series of motions contesting the court‘s decision. 26
     On appeal, the court reversed the decision-holding that Roddy was personal
property subject to state‘s equitable distribution statute.27 Even though the
appellate court recognized that ―a dog may be considered by many to be a member
of the family,‖ it firmly held there was ―no author ity which provides for a trial
court to grant custody or visitation pertaining to personal property.‖ 28 The
appellate court went on to state:

      While several states have given family pets special status within
      dissolution proceedings, we think such a course is unwise.
      Determinations as to custody and visitation lead to continuing
      enforcement and supervision problems (as evidenced by the proceedings
      in the instant case). Our courts are overwhelmed with the supervision of
      custody, visitation, and support matters related to the protection of our
      children. We cannot undertake the same responsibility as to animals. 29

          Sanjiv Bhattacharya, To Love, Honor and Belly Scratch: Marriages Come and Go But
Judging by the Number of Rising Pet-Custody Disputes, Some Passions Endure, L.A. T IMES M AG .,
Jan. 9, 2005, at 20.
         Bennett v. Bennett, 655 So.2d 109, 110 (Fla. Dist. Ct. App. 1995).
         M r. Bennett refused to comply with the ruling and requested an immediate rehearing. Id.
M eanwhile, M s. Bennett requested a custody transfer or a change in the visitation order. Id. After the
court rendered final judgment in favor of M s. Bennett‘s requested visitation changes, M r. Bennett
appealed the decision. Id.
         Id. at 110–11 (internal citation omitted).
2008]                          CUSTODY BATTLES OVER THE P ET                                        437

      The court‘s decision in this case may seem callous in light of the parties‘
emotional connection to Roddy. However, in this case, the law could not abide the
trial court‘s ruling. As the appellate court concluded, ―[w]hile the trial judge was
endeavoring to reach a fair solution under difficult circumstances, we must reverse
[and remand] pursuant to the dictates of the equitable distribution statute.‖ 30 Courts
in other jurisdictions have adopted an attitude similar to the Florida Court of
Appeals in Bennett—that unequipped laws and overstrained divorce court dockets
simply cannot accommodate complex, drawn-out pet custody litigation. 31

   B. Copy Cat: The Similarities Between Pet Custody and Child Custody Cases

      Another theme arising in many pet custody cases are pleas asking the court to
consider ―what is in the animal‘s best interest‖—an inquiry usually reserved for
child custody litigation. 32 In Zovko v. Gregory, two former roommates were at
odds over the custody of their cat, ―Grady.‖ 33 The court found that the happiness of
Grady ―took priority‖ over the property rights asserted by both parties. 34 In a rare
departure from the strict personal property considerations typically taken by courts,
the Virginia trial court ruled that it was in the ―best interest of Grady‖ to grant
custody to the non-owner roommate.35 The Alaska Supreme Court case Juelfs v.
Gough provides another example of courts placing the interests of the pet before
the property interest of the owners. 36 In Juelfs, the court upheld the former
husband‘s sole custody of ―Coho,‖ the family‘s Labrador retriever, after arguments
that the wife‘s other dogs threatened the Labrador‘s life. 37 The court determined
that the dog was not safe at the wife‘s residence.38
      In considering the best interests of the pet, some litigants offer expert
testimony from animal behaviorists, pet care professionals, and even the local
veterinarian. Dr. Amy Marder, a veterinarian practicing in Lexington, Virginia has
been asked several times to assess which divorcee would be a better parent for the
pet.39 But before providing testimony, specialists like Dr. Marder have to conduct a
―proper evaluation,‖ which includes an hour and a half consultation with the pet
and its owners.40 For instance, Dr. Marder ―asks the owners a barrage of questions:
which of the two spends more time with the animal, who plays with it more, who

           Id. at 111.
           Pat Shellenbarger, Do Dogs Belong in Divorce Court, GRAND RAP IDS PRESS, Jan. 11, 2008, at
          ―[A]pparently for the first time in the [United States], a judge in Tennessee appointed a
guardian ad litem to look out for the interests of a dog that is the subject of a highly emotional battle
between a divorced couple.‖ Terry Carter, Beast Practices, 93 A.B.A. J. 39, 39 (Nov. 2007)
(discussing In re Estate of Ronald W. Callan Jr., No. D-2252, (Shelby County Probate Court 2007)).
         Zovko v. Gregory, No. CH 97-544 Arlington County (Va. Cir. 1997).
         Juelfs v. Gough, 41 P.3d 593 (Alaska 2002).
         Id. at 595.
         Bennett, supra note 12, at 1D.
438                      JOURNAL OF LAW & FAM ILY STUDIES                          [Vol. 10

feeds it. She asks about the pet‘s upbringing, its temperament, how much it
      After Dr. Marder has completed her examination, she analyzes the situation
using ―the same sort of considerations that would go into deciding a child-custody
case.‖42 The final recommendation is based on which party is likely to be a better
caretaker, as well as which party seems to have a stronger connection with the
      The only alternative in deciding which party shares a stronger bond with the
pet is a so-called ―calling contest.‖44 In these somewhat arbitrary and often cruel
productions, the parties meet at a neutral location, stand at equal opposing
distances, and call to the animal to see who it goes to first. Consider this
description of one such contest:

           As the vet brings Lemons in, both wife and husband spring to life,
      both of them calling and patting their knees. ―Here girl! Come on
      Lemons!‖ The poor creature looks confused for a moment. Then he
      bounds over to the wife. It‘s settled—Lemons apparently has a greater
      emotional bond with her. Such is the force of these calling contests that
      ultimately, in an out-of-court settlement two months later, she will be
      awarded full custody of the dog. In return she will compensate her ex
      with $1,200. 45

      Dr. Marder does not approve of calling contests,46 and considering the tactics
that some parties are willing to employ, it is difficult to disagree. ―For a couple of
days beforehand, [the dog] has to stay with a third party so that nobody has an
unfair advantage, which you would if you fed the dog that morning.‖ 47 Competing
callers have also been known to use more deceptive tactics such as rubbing their
hands with sausage.48 ―That‘s why you need the vet there, to check their hands.‖49
      Elaborate measures to ensure the fairest possible calling contest, coupled with
the questionable results it can potentially produce, make it easier to understand
why parties may seek the analysis from pet experts. And considering the recent
strides regarding the parent-child type relationship many owners have with their
pets, ―the concept of what‘s best for the child could transfer over to what‘s best for
the pet.‖50

         Bhattacharya, supra note 22, at 20.
         Bennett, supra note 12, at 1D.
         Bhattacharya, supra note 22, at 20.
          Chris Duke, Custody Battles Can Involve Pets, BOULDER D AILY CAMERA , Dec. 7, 2007,
available at -battles-can-involve-pets/.
2008]                         CUSTODY BATTLES OVER THE P ET                                        439

    C. The Bark Is Worse Than The Bite: Media Attention In Pet Custody Cases

      Adding to the umbrage felt toward pet custody cases is the fact that while pet
custody cases have recently gained substantial media attention, these cases are
often profiled for entertainment value rather than legal merit.
      In Assal v. Kidwell, the parties were back in court two years after their
divorce, fighting over the custody of a Keeshond dog named ―Sable.‖ 51 After the
former wife spent approximately $20,000 to maintain custody of Sable, the court
granted visitation rights to the former husband. 52 The battle finally ended when a
Maryland circuit court judge threatened to sell the dog and split the profit if the
parties could not reach a workable visitation agreement. 53 In Raymond v.
Lachmann, ―Lovey,‖ an ailing ten-year-old cat, became the subject of a fierce
battle between two former roommates. 54 The New York appellate court couched
their reasoning with ―cognizan[ce] of the cherished status accorded to pets in our
society,‖ but the court was quick to shoo the case away based on its own ―limited
ability to resolve [pet custody cases] satisfactorily.‖ 55
      Although Assal and Raymond received a fair amount of notoriety, the 2000
―Perkins Case‖ is perhaps the most infamous pet custody dispute. 56 In this case, an
affluent San Diego couple launched an all-out war over the custody of ―Gigi,‖ a
little dog who reportedly took up half of the Perkins‘ three-day divorce trial.57
Throughout the course of the litigation, Ms. Perkins allegedly invested some
$146,000 in the case to finance, among other things, a ―canine bonding‖ study
conducted by a professional animal behaviorist and a video about the dog titled ―A
Day in the Life [of Gigi].‖58

                           V. ―THE TAIL WAGGING THE DOG‖
                         RETHINKING THE LEGAL STATUS OF P ETS

     In response to the rise in pet custody cases—and animal law in general—the
legal community outside the courtroom is encouraging law students and lawyers to
rethink the way animals are classified under the law.59 In 1986, the first animal law

         Assal v. Kidwell, Civil No. 164421 (M d. Cir. Ct., M ontgomery Cty. Dec. 3, 1999) [closed
records]. For a more in depth case history see Assal v. Kidwell court records available at M aryland
Judiciary Case Search, -index.jsp (select ―Circuit
Court Judgment and Liens‖ hyperlink; enter Assal into partyname searchbox; select ―M ontgomery
County‖ from the county dropdown menu; click twice on case number 9286FL) (accessed Jan. 25,
2008); Sally Kalson, In Pet Custody Battles, Courts Treat Animals as Property, PITTS BURGH POST-
GAZETTE , June 25, 2006, at E7.
         Kalson, supra note 51, at E7.
         Raymond v. Lachmann, 264 A.D.2d 340, 340–41 (N.Y. App. Div. 1999).
         Id. at 341.
         See, e.g., Bennett, supra note 12, at 1D; Bhattacharya, supra note 22, at 20; Alex Roth, It’s a
Dog-Eat-Dog Battle in Court for Pet Custody, SAN DIEGO U NION T RIB., M ay 29, 2000, at A1.
         Kalson, supra note 51, at E7.
         See, e.g., Porter, supra note 2, at D1.
440                        JOURNAL OF LAW & FAM ILY STUDIES                                [Vol. 10

course was taught at Pace University Law School. 60 Now, as many as ninety-five
law schools across North America offer courses or study groups on animal law,
many of which include segments on pet custody. 61 Some law schools even provide
resources for students to specialize in animal law with co-curricular resources like
the Animal Legal and Historical Center at Michigan State University College of
Law and the Animal Law Review at Lewis & Clark Law School. 62
     The resources for animal law advocates are also becoming more widely
available. The ALDF boasts over one hundred Student Animal Legal Defense
Fund chapters scattered across the United States and Canada.63 Beginning in 2001,
a foundation started by Bob Barker (television personality and long-time animal
rights advocate) has provided several one million dollar grants for animal law
courses, workshops, and scholarships to students at Harvard, Columbia, Duke,
Georgetown, Northwestern, Stanford, and the University of California at Los
Angeles (UCLA).64 Such targets ―suggest that Barker wants to create an influential
animal law community of legal professionals.‖ 65
     Indeed, the emergence of animal law professionals is becoming evident
among practicing lawyers. More than twenty state and local bar associations have
animal law sections and committees. 66 In 2000, the ALDF reported that seventy
law firm lawyers volunteered to take on animal law cases pro bono; that number
has now increased to more than six hundred. 67 Among the modest number of
lawyers currently practicing animal law, there are even a few pet custody
     Despite the burgeoning issues and practitioners, substantial improvements in
future pet custody cases will require serious changes in state laws and policies.69
Responding to arguments that courts are already overburdened with child custody
cases, pet custody advocates say that if divorcees ―can share a piece of vacation

          Carter, supra note 32, at 39.
          Animal Legal Defense Fund, ALDF: Animal Law Courses,
x.php?pid=83 (last visited Apr. 17, 2008). There are also textbooks on animal law for those courses.
          Animal Legal and Historical Center, (last visited Jan. 25, 2008);
Animal Law Review, (last visited Jan. 25, 2008).
          Animal Legal Defense Fund, SALDF Chapters,
51 (last visited M ar. 31, 2008).
          Carter, supra note 32, at 42.
          Animal Legal Defense Fund, ALDF Resources,
=101 (last visited Jan. 25, 2008).
           Carter, supra note 32, at 39. According to Jonathan Lovvorn, vice president for animal-
protection litigation for the Humane Society of the United States (HSUS), the organization ―opened
its own legal shop in 2005 with three lawyers. That practice has grown to 12 lawyers and 40 active
cases, with about 200 lawyers helping out pro bono, including members of six of the 10 biggest law
firms in the country.‖ Id.
          Animal Legal Defense Fund website, ALDF: Resources,
s.php?id=78 (last visited M ar. 30, 2008).
          See Kalson, supra note 51, at E7 (―Even when judges recognize that pets have a special place
in a family‘s life, the law may not support that recognition.‖).
2008]                         CUSTODY BATTLES OVER THE P ET                                            441

real estate at the shore, they can share a pet.‖70 The challenge arises in compelling
courts to enforce shared custody agreements absent a statute.71 Fortunately for pet
custody advocates, attorneys and state legislators recognizing the need for change
are already making headway in several jurisdictions.
      In 2007, Wisconsin became the first state to propose legislation allowing
couples to establish pet custody and visitation rights. 72 If the feuding couple can
not reach an agreement on their own, the statute also allows judges to assign
custody or turn the pet over to a local animal shelter and ―[w]hoever gets there first
owns the dog, cat or even goldfish.‖ 73 In 2008, a similar bill was introduced in the
Michigan Legislature that would ―require any spouse filing for divorce to include a
list of all pets, their species and when they were purchased.‖74 The divorcing
couple must also file any custody agreements made out of court, ―[o]therwise, a
judge should decide who gets custody of the pets.‖75
      Critics of pet custody legislation claim that special attention from lawmakers
is unnecessary and silly. 76 But if the previously detailed cases are any indication of
future pet custody battles, the added clarity that statutory guidelines could
potentially offer seems well worth the effort.

                                         VI. CONCLUSION

      Only time will tell whether pet custody legislation will be successful—both in
its ability to pass through state legislatures, and in its ability to effectively improve
pet custody cases in state courts. Ultimately, finding workable solutions to the
issues raised in pet custody cases will depend on current and future pet custody
advocates. According to one such advocate, Jonathan Rankin, a Boston attorney
who recently left the firm Glickman Turley to open his own animal law practice,
―courts are always behind society.‖ 77
      However, Rankin remains optimistic that eventually, by statute or by
precedent, positive changes will eventually improve future pet custody disputes.
―If corporations can be persons in the eyes of law, if ships can be persons in the
eyes of the law, then the law should be able to figure out something for animals.‖ 78

        According to one Pennsylvania pet custody advocate:
      Every state will deal with the distribution of the pet as part of marital assets, but not many
      will deal with shared custody. [. . .] In Pennsylvania, the same courts that will enforce an
      agreement to share a boat or season tickets to the ball park will not enforce a similar
      agreement regarding an animal.
       A. B. 436, 2007 Reg. Sess. (Wis. 2007), available at
       P.J. Huffstutter, Who Gets Custody of Fido, L. A. T IMES, July 15, 2007, at 13.
       Shellenbarger, supra note 31, at A1.
       Bennett, supra note 12, at 1D.

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