Generally speaking, family courts have been quite reluctant to consider “pet custody” arguments; they much prefer to treat pets as property, to be allocated as part of a property settlement (like a car or a house), than as akin to children, for whom a custody decision should be made. But Hamet v. Baker (Vt. Apr. 25, 2014), from the Vermont Supreme Court, essentially endorses a “best interests of the dog” standard, much like the best interests of the child standard used in custody cases, albeit in the context of a property division. (The court also endorses consideration of whether the dog was one spouse’s property before the marriage — mentioned in a passage that I exclude from the excerpt — and the emotional connection between the dog and each spouse, but those seemed to be equally applicable, or equally inapplicable, in this case, as they would be in many cases.)
I wonder, though, whether the court’s decision was really based on any objective evaluation of the dog’s best interests (or how that could be determined, short of cases of outright abuse or neglect), as opposed to the judge’s personal view of how he feels a dog should be treated. Read it yourself, and see what you think:
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 considering pets as a special category of property, we have previously announced common law rules to govern issues of ownership. In the case of lost pets, for example, we have held that “the finder of a lost pet [who] makes a reasonable effort to locate its owner, and responsibly cares for the animal over a reasonably extensive period of time,” may acquire title which is superior to that of the original owner. The finder of a lost ring has no such rights….
The treatment of pets under the divorce statute presents a similar problem…. 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….
[The trial court rightly concluded that it lacked] authority to impose an enforceable visitation order for the dog. An order of property division is final and not subject to modification. In contrast to enforcement of other kinds of property division orders, enforcement of an order requiring ongoing sharing of a family companion animal would require the power of modification, since the animal’s well-being in the context of changing circumstances could be a substantial factor in the analysis.
Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal. Divorce has few concrete advantages for the parties, but one of the greatest is that they are no longer compelled to be in contact over the care and use of their property or the way they spend their time. Accordingly, we agree with the court below that even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division. [Footnote: We express no opinion as to whether a private agreement to share time with a dog could be the subject of a civil lawsuit. The enforcement of such agreements falls outside of the jurisdiction of the family division over the distribution of marital property and is not presented in this case.]
UPDATE: Thanks to commenter cs0718 for pointing out that I originally misedited the second-to-last paragraph of the block quote, saying that the trial court concluded it had authority to impose a visitation order; as the remaining paragraphs show, the trial court actually concluded that it lacked such authority. Very sorry about the error, which I’ve corrected.