What test should the family courts use to resolve pet custody disputes?
By Deborah Rook
This is my dog Charlie. Like many pet owners in England and Wales I see my dog as a member of my family. He shares the ups and downs of my family life and is always there for me. But what many people don’t realise is that Charlie, like all pets, is a legal ‘thing’. He falls into the same category as my sofa. The law distinguishes between legal persons and legal things and Charlie is a legal thing and is therefore owned as personal property. If my husband and I divorce and both want to keep Charlie, our dispute over where Charlie will live would come within the financial provision proceedings in the family courts. What approach will the family courts take to resolve this dispute? It is likely that the courts will adopt a property law test and give Charlie to the person who has a better claim to the property title. This can be evidenced by whose name appears on the adoption certificate from the local dogs home or who pays the food and veterinary bills. Applying a property test could mean that if my husband had a better property claim, Charlie would live with him even if Charlie is at risk of being mistreated or neglected.
Property versus welfare
Case law from the United States shows that two distinct tests have emerged to resolving pet custody disputes: firstly, the application of pure property law principles as discussed above; and secondly, the application of a ‘best interests of the animal’ test which has similarities to the ‘best interests of the child’ test used in many countries to determine the residency of children in disputes between parents. On the whole, the courts in the United States have used the property law test and rejected the ‘best interest of the animal’ test. However, in a growing number of cases the courts have been reluctant to rely solely on property law principles. For example, there are cases where one party is given ownership of the dog, having a better claim to title, but the other is awarded visitation rights to allow them to visit. There is no other type of property for which an award of visitation rights has been given. In another case the dog was given to the husband even though the wife had a better claim to title on the basis that the dog was at risk of severe injury from other dogs living at the wife’s new home.
Pets as sentient and living property
What the US cases show is that there is a willingness on the part of the courts to recognise the unique nature of this property as living and sentient. A sentient being has the ability to experience pleasure and pain. I use the terminology ‘pet custody disputes’ as opposed to ‘pet ownership disputes’ because it better acknowledges the nature of pets as living and sentient property. There are important consequences that flow from this recognition. Firstly, as a sentient being this type of property has ‘interests’, for example, the interest in not being treated cruelly. In child law, the interest in avoiding physical injury is so fundamental that in any question concerning the residency of a child this interest will prevail and a child will never be knowingly placed with a parent that poses a danger to the child. A pet is capable of suffering pain and has a similar relationship of dependence and vulnerability with its owners to that which a child has with its parents. Society has deemed the interest a pet has in avoiding unnecessary suffering as so important as to be worthy of legislation to criminalise the act of cruelty. There is a strong case for arguing that this interest in avoiding physical harm should be taken into account when deciding the residency of a family pet and should take precedence, where appropriate, over the right of an owner to possession of their property. This would be a small, but significant, step to recognising the status of pets at law: property but a unique type of property that requires special treatment. Secondly, strong emotional bonds can develop between the property and its owner. It is the irreplaceability of this special relationship that means that the dispute can’t be resolved by simply buying another pet of the same breed and type. This special relationship should be a relevant consideration in resolving the future residency of the pet and in some cases may prevail over pure property law considerations.
I argue that the unique nature of this property — the fact that it has an interest in not suffering pain and the fact that it has an ability to form special relationships — requires the adoption of a test unique to pet custody disputes: one that fits within the existing property category but nevertheless recognises the special nature of this living and sentient property and consequently permits consideration of factors that do not normally apply to other types of property in family law disputes.
Deborah Rook is a Principal lecturer in Law at the School of Law, Northumbria University and specialises in animal law. She is the author of ‘Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law’ (available to read for free for a limited time) in the International Journal of Law, Policy and the Family.
The subject matter of the International Journal of Law, Policy and the Family comprises the following: analyses of the law relating to the family which carry an interest beyond the jurisdiction dealt with, or which are of a comparative nature; theoretical analyses of family law; sociological literature concerning the family and legal policy; social policy literature of special interest to law and the family; and literature in related disciplines (medicine, psychology, demography) of special relevance to family law and research findings in the above areas.