Divorce leaves judge to assign pet custody
About four years ago, my wife brought home a beautiful mixed-breed puppy for my birthday. A friend of hers was moving and could no longer care for it. I fell in love with Jake, but unfortunately fell out of love with my wife, and we are in the process of divorce. When she moved out, she took Jake with her. Since Jake was originally a gift for me and I was 95% responsible for caring for him, walking him, playing with him, and being with him, I am angry and miserable and want Jake back. Is there anything I can do?
Divorce can be emotionally devastating on not only spouses and their children, but on family pets as well. I can certainly understand how frustrated and sad you are.
Traditionally, dogs have always been considered property, and divorce settlements have typically allowed family pets to be distributed in the same way as a table or dresser. This is still true in most states and with most judges. However, the trend recently has been for courts to recognize the intrinsic difference between an animal companion and a floor lamp. Most people see their dogs, cats, horses, and other animals as members of their extended family, and some judges are now trying to factor this emotional bond into their divorce deliberations. The best resolution, of course, is for you and your soon-to-be ex-wife to come to a private written agreement as to visitation, care, and custody of Jake.
New Mexico is a community property state and, as such, property is divided equally between divorcing parties. Unless one party owned the animal prior to the beginning of the marriage, and because a dog cannot be physically divided in half, it may be up to the court to decide where the dog goes to live if the parties cannot come to an agreement. In circumstances where both parties have been equal caregivers for their pet, my guess is that the judge would order it to remain with the person with physical custody.
If your wife will not negotiate with you over Jake’s custody, you can try to persuade the judge that Jake is more emotionally attached to you, due to your close daily contact as primary caregiver; that you can provide Jake with a more interactive place to live; and that Jake was intended by your wife to be a gift to you. As in a child custody case, the judge may weigh the “best interests” of the dog in making a decision. But keep in mind that no judge is going to appoint a psychologist, social worker, or guardian to assess the dog’s needs nor award visiting rights or joint custody.
Also, if you get a judge who adheres to a “strict property” analysis when it comes to companion animals, and awards Jake to your wife, you may have no choice but to accept this (though you can certainly appeal, which is a lengthy and expensive process that is unlikely to change the result). While such a resolution would no doubt be a terrible emotional blow, keep in mind that there are countless shelter and rescue dogs desperately looking for a loving home and, if you adopt one, then both Jake and your new dog will count themselves two of the lucky few.
P erhaps one day we will have a judicial system that fully recognizes the value of our companion animals, devising ways to appropriately assess the best interests, not only of the human parties to divorce, but also the non-human ones. Good luck!
Ed Goodman worked for more than two decades as a trial lawyer in Massachusetts. A painter, screenwriter, and novelist, he lives in Corrales with his partner, Ennio Garcia-Miera, and their six dogs, four turkeys, four chickens, and a parrot.