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be family members,
5
and some even compare their companion animals to
children.
6
However, equally abundant in American society is divorce,
7
and this can
have an effect on companion animals. Other separations and transitions can
be similarly impactful, whether it is the termination of a long-term
relationship or simply a roommate moving out.
8
When such a situation
occurs, an unavoidable query arises—Who should keep the companion
animal?
This question has produced a multitude of views. The most prevalent
opinion is that companion animals are merely pieces of property and should
be treated as such.
9
Not all jurisdictions follow this approach, however, and
some consider the “best interests” of the companion animal when
determining where the animal should be placed.
10
While this approach
seems more humane and likely places companion animals in better living
situations, there are potential difficulties.
11
Courts become encumbered with
interminable divorce proceedings that center on this best interests issue,
creating stress not only for the potential guardians, but for the companion
animals as well.
12
Furthermore, if guardians desire to devise a custody
5. ROD PREECE & LORNA CHAMBERLAIN, ANIMAL WELFARE AND HUMAN VALUES 247
(1993). Around eighty percent of companion animal owners view their animals as family. Id.
6. William C. Root, Note, “Man’s Best Friend”: Property or Family Member? An
Examination of the Legal Classification of Companion Animals and Its Impact on Damages
Recoverable for Their Wrongful Death or Injury, 47 VILL. L. REV. 423, 437 (2002).
7. Divorce Rate, DIVORCERATE.ORG, http://divorcerate.org (last visited Mar. 22, 2012).
Approximately fifty percent of first marriages, sixty-seven percent of second marriages, and seventy-
four percent of third marriages end in divorce. Id.
8. See Brooke A. Masters, In Courtroom Tug of War Over Custody, Roommate Wins the
Kitty, WASH. POST, Sept. 13, 1997, at B1.
9. See Christopher D. Seps, Note, Animal Law Evolution: Treating Pets as Persons in Tort
and Custody Disputes, 2010 U. ILL. L. REV. 1339, 1342. Seps also comments that the law, in
attempting to treat all animals as property, is inherently hypocritical for it “distinguishes among
certain groups of animals” and that “different laws apply to different animals based on their
categorization as wild animals, livestock, research animals, or pets.” Id. at 1340.
10. See Katherine Shaver, Whose Best Friend is She Anyway? Divorce Judge Asked to Enforce
Visitation—for Pet Dog, WASH. POST, Dec. 4, 1999, at A1; see also Vargas v. Vargas, No. 0551061,
1999 WL 1244248 (Conn. Super. Ct. Dec. 1, 1999). In this case, the judge took into consideration
testimony that the husband did not treat the dog well and would not be able to provide the animal
with adequate living conditions. Id. at *8, *13. The judge subsequently awarded custody to the
wife, even though the dog had been a present from the wife to her husband. Id. at *4, *13.
11. See Seps, supra note 9, at 1368. Seps points out that treating animals as more than
property could “cause an increase in the complexity of litigation.” Id.
12. “Pets may be highly stressed by the discord between owners, and in extreme cases stress
can affect their health and behavior.” Dru Wilson, In Divorce, Pet Custody Often Sticky, WASH.
POST, Mar. 7, 2002, at C10. For an example of absurd litigation, see Ann Hartwell Britton, Bones of
Contention: Custody of Family Pets, 20 J. AM. ACAD. MATRIM. LAW. 1, 3 (2006). The article
discusses a case where a couple argued extensively over the custody of their dog. Id. The wife