Chapter 2

THE CUSTODY OF CANINES

(Dividing the Dog)

People have always fought like cats and dogs in divorce court. However, the number of cases where people are actually fighting over the dog or cat has increased substantially in the past several years. Many of these cases get a great deal of media coverage, particularly where large amounts of money are spent on legal fees such as the case of “Gigi” mentioned in the Introduction. However, for every sensational case you see on CNN or in the headlines of a newspaper, thousands of couples parting ways wrestle with this problem daily in family courts. Dogs, while considered “persons” in their owners’ minds, are not given the same status in court as human children, although it’s easy to apply the same principles for canine custody as used in child custody. A Pennsylvania couple tackled this problem, albeit not cheaply, and finally arrived at a reasonable solution for the people and the dogs.

Mr. Robertson is a successful financial planner in Philadelphia. He was married for thirty-three years to the mother of his four daughters. During the marriage his wife was a stay-at-home mom to their four children and filled the role of corporate wife. Family was important to the Robertsons. Their lovely home had been built to foster togetherness and contained all the elements that made it the place where the kids and their friends loved to hang out. The large, sprawling home was set on three acres and had a disco in the basement, a soda fountain bar, a gym, a pool, and as many dogs and cats as possible. The warm kitchen opened into a comfortable family room where animals and people spent many happy hours in front of the fireplace and watching television.

The Robertson kids grew up and went off to college and careers, then the Robertson marriage came to an end. At the time of the divorce, the family had three rescued golden retrievers, several cats, expensive furniture, numerous cars, and lots of investments. As the divorce made its way through the procedure of dividing assets, few problems arose. It was easy for the separating spouses to choose cars, agree on an equitable distribution of financial assets, and agree that the husband would keep the house and the wife would pick out a new one. In one twenty-minute walk through the seven-thousand-square-foot house armed with Post-it notes, they agreed, without rancor, who would take what furniture. The only problem was they could not agree on who should keep the dogs.

Mrs. Robertson thought she should get the dogs because she was the one who stayed at home with them every day and walked them and fed them the majority of the time. Mr. Robertson was certain the dogs should stay in the only home they had ever known so they could continue swimming in the pool and run freely on the property.

Mrs. Robertson said the dogs would be lonely at home all day because they were used to her being with them. Mr. Robertson said the dogs would miss the weekend trips to the mountains and beach he took them on. This went on for two years. The property settlement was signed, the deeds were transferred, titles to cars signed off on, investments disbursed, but the dogs remained in limbo.

Finally, after lawyers drained the separate property of both spouses and caused a huge decline in their financial resources, they decided to use a family law mediator. It took only one session for the custody of the dogs to be decided. The mediator had both parties submit evidence of the two main standards used in child custody cases. Who was the primary caretaker of the dogs and what was in their best interest? The mediator was able to help the couple see that both of their arguments for custody for keeping the dogs fit in these standards. Mrs. Robertson’s argument for keeping the dogs had been the “primary care” standard, and her husband’s was “in the best interest of the dogs.”

In the Robertsons’ case, both spouses played important roles in the lives of the dogs. It was true that Mrs. Robertson was the primary caretaker—she took them to the vet, fed them, and took them for walks—but it was equally true that it would be unfair for the dogs to be taken from their home with their favorite lounging areas, the yard they loved to run in, and to deny them of their swimming pool privileges. The Robertsons were finally able to put an end to the dogfight and agree on the following canine custody arrangement.

1. The Robertsons would share joint custody of the canines.

2. They would be solely responsible for all of the dogs’ expenses while in their individual custody, including food, new leashes and collars, treats, toys, and other items.

3. They would bear equally the cost of veterinary care for the dogs, and no medical decisions would be made for the dogs without the consent of the other party, except in an emergency situation. Each party would execute a Medical Power of Attorney in favor of the other person in case of a life-threatening emergency, and if one person could not be located that authorized the person who was with the dog to make any necessary decisions.

4. The dogs would reside with Mrs. Robertson from Monday morning when Mr. Robertson would drop them off on his way to work, until Friday evening when he’d pick them up on his way home.

5. Both Mr. and Mrs. Robertson would have the right to take the dogs on a two-week vacation annually, and other trips as agreed to.

6. Holidays would be split every other year:

• During odd-numbered years, Mr. Robertson would get the dogs on Thanksgiving, Easter, and Memorial Day. Mrs. Robertson would get them on Christmas, New Year’s Eve, and Labor Day.

• During even-numbered years, Mr. Robertson would get the dogs on Christmas, New Year’s Eve, and Labor Day and Mrs. Robertson would get them on Thanksgiving, Easter, and Memorial Day.

7. The dogs would always spend the Fourth of July with Mr. Robertson because they were afraid of fireworks and were used to taking shelter in the wine cellar during that celebration.

8. Changes in the schedule had to be requested two weeks in advance.

This worked amazingly well for the Robertsons and their grown children. In fact, when Mr. Robertson adopted a new dog, this dog was also included in the custody agreement. As for the cats, since the house provided more than enough room for Mr. Robertson and the dogs, the cats were granted sole possession of the third floor of the former marital home.

During the two years when custody of their dogs was pending, the Robertsons were cordial and accommodating; however, that’s not always the case. In the movie When Harry Met Sally, Billy Crystal tells his newlywed friends that sooner or later they’ll be fighting over an eight-dollar dish that will one day cost them a fortune at the legal firm of That’s Mine, This Is Yours. While humorous, it’s not so funny when you find yourself in front of a judge who views your dog no better than a coffee table with a pulse, and that’s exactly the situation you’ll encounter in the majority of courts today. Keep in mind that even though dogs are regarded as property by the court, they are not automatically factored into any agreements as your house would be. Dogs and other pets only become an issue when both parties want custody of them.

A lot of divorces and other relationships that end don’t involve pets, but when they do, its unknown territory for most couples. I’ve personally talked to dozens of couples with sad stories of the dog they lost in the divorce. Years later, they’re still angry, sad, or both. With a little preparation, a lot of common sense, and a big serving of kindness, you can get through this and keep your beloved canine companion with you. Dismissing unrealistic expectations that a court hearing will solve your problems is paramount. The court will be of little or no help to you.

The first thing you have to accept is that courts today still hold the view that animals are property. Despite the high-profile cases in the media involving celebrities and other unique issues, the law has no provisions for pets as anything more than property and often will not even address the pet custody issue. If you’re facing a pet custody issue, and you understand this, you can prepare adequately and not waste time and money attempting an avenue of recovery that in all probability will never happen.

It is possible to avoid an acrimonious custody fight over Rover even if it’s not entirely amicable. If you’re not married or cohabitating with someone right now and you have a pet, then before you share a residence or last name with someone it’s essential for you to have a “petnuptial” agreement. This needs to be separate from any standard prenuptial you enter into for financial or property issues, because prenuptials often cover a number of issues, and when one or more of these is challenged when the couple divorces the agreement comes under scrutiny. In many jurisdictions if one part of a contract or agreement is flawed, the entire document is thrown out. Don’t take this chance with your dog. It’s one thing to lose out on money or cars, but a living creature that you love is quite another situation.

I’ve created a “petnuptial,” which is a simple one-page legal document that declares whom your dog belongs to and who will get her if you split up. At the back of the book is a sample petnuptial, which you can use to create your own. Then, should you ever part ways, it will clearly establish whom the pet belongs to. Of course, you must continue to provide care, love, and every other need your dog has and to constantly look out for her best interest. That’s because in relationships and marriage, sometimes property is deemed commingled. That means ownership transfers to the other person through any number of acts (these are discussed later). Since your dog is property, this could happen. Just make sure you take care of your dog so when the two-legged companion goes in another direction your four-legged companion will be at your side.

In any relationship that is ending, be it a marriage, civil union, or other partnership, you must first try to get an agreement with your spouse or partner that your dog will remain with you. It might be impossible for many reasons, but you at least have to try. If you can have a rational conversation with the departing spouse that you should keep the dog, make sure it ends in a written agreement that confirms custody of the dog to you and get it notarized. It doesn’t have to be prepared by an attorney or have a lot of unnecessary legalese. A simple one-page document will work just fine as long as it’s clear that Rover remains with you. Keep this document and enter it into your court file as part of your property settlement. A judge’s indifference to the custody of the pet also works in your favor; they really don’t care who gets the dog, so you can agree to anything with your partner.

As civil as the Robertsons were, they couldn’t reach an agreement with each other about the dogs. Unfortunately, before they discovered mediation, they’d spent thousands of dollars on attorney’s fees with no result. They were getting nowhere in the court system and had nothing to lose by trying the services of a mediator. Once it’s clear that you are at an impasse with your spouse over the custody of Rover, ask them to participate in mediation. If you live in a jurisdiction where mediation is used, this is an excellent option and should be attempted before you involve your lawyers to try to get a judge to listen to your dispute.

Mediators charge by the hour. That’s it. Not by the hour for each of you, just for the time you use them and for the time they review your case before the actual mediation. They are extremely economical when you consider what you’re paying your attorneys. For example, if the wife has an attorney who bills her at two hundred and fifty dollars an hour and she calls to find out something about her husband, she will be put on hold while the lawyer calls the other attorney to see if he can get the question answered. All the while the wife is on hold, the “meter” is running. As soon as the husband’s attorney picks up the phone, another meter starts running at that lawyer’s hourly fee. So, if the husband is paying his lawyer an hourly fee of three hundred dollars an hour, while the two lawyers are talking—maybe about the case or maybe about golf or a new Mercedes—combined the couple is getting billed a whopping five hundred and fifty dollars an hour! A mediator is much more cost effective and more efficient than a court with a crowded docket so it may be months before a hearing is scheduled.

Mediators are trained problem solvers. A mediator is a neutral third party who has no interest in the outcome and is trained to help people reach resolutions in many different types of disputes. As a certified family law divorce mediator, I’ve seen many seemingly insurmountable problems go away after a few mediation sessions. Mediators listen to both sides of the story and suggest, not order, a solution.

Mediation is much less formal than a court hearing and is always held in a neutral location. I often use the conference room of a legal organization I belong to or my own dining room. The only criteria for the location of the mediation is that it has no personal meaning for either party. Your lawyers should not be present at the mediation; it would be counterproductive to have them present. This is your attempt to solve the custody issue between the two of you and the mediator. During parenting plan mediations, children are never present, and your contested pet shouldn’t be either. It’s not a contest where the dog is placed in the middle and you both call her name to see whom she responds to. Mediators are excellent listeners and can often hear things neither party realizes they are saying and bring great insight to the dispute.

You can bring the same type of evidence to a mediation that you would present in court. Since it’s less formal, you’ll be able to speak freely. The mediation usually starts with both parties sitting with the mediator at a table. Unlike depositions that might be held as part of your divorce case, the mediation is not recorded and a court reporter is not present. The mediator will make a brief introduction and explain how the mediation will proceed. I find it helpful to have a flip chart of a short list of rules that I explain at the beginning. The rules are simple and basically require the parties to be respectful, not to interrupt, to ask for a break if they need it, and to remain calm and open to the process.

The mediator might ask each party to write down what they expect out of the mediation and not just the end result. Then each party is given a chance to make an opening statement. This is your chance to tell the mediator your side of the story. Each party must respect the other and not interrupt them when they are speaking.

After the introductory session, the mediator will meet with each party separately. This is the time to present any documentary evidence you have. The mediator will make notes and ask you questions. This might continue for several meetings. You’ll be able to give the mediator questions to take to your spouse and vice versa. The mediator will only share information with the parties that they have authorized her to disclose.

Once the mediator feels sufficient information has been exchanged and shared, she will bring both parties together and make a recommendation for resolution of the matter. The mediator’s recommendation is not binding, and both parties can disagree and walk away. However, if the mediation is successful and both parties agree, this matter won’t be part of your court case. It can be put in the final order without the court’s approval.

The decisions reached in mediation should be put in writing and include:

• Who gets physical custody of the pet?

• Are you going to have shared custody?

• How financial obligations for the pet will be handled if custody is shared.

• What veterinarian will you use?

• Will the noncustodial ex have visitation?

• What restrictions will apply to visitation?

• Any other aspect of the dog’s future if you are sharing custody.

This is the time to get every issue you’ve agreed to in writing. Remember, you can agree to anything at this point, but if you take the matter to court, the decision is out of your control.

If the mediation fails, then you can move forward and hope to get the court’s assistance in the matter. If the court decides the placement of your “pet property,” it will be put in your final divorce order. Keep in mind that final orders from a judge are just that: final. If you choose to appeal, it’s a long, complicated process, and in the meantime the well-being as well as the placement of your beloved pet must comply with the order. You’ll have to rely on your lawyers and hope they draw a judge who will be sympathetic to your issue of pet custody and willing to deal with it. It’s important that during your mediation you keep working until you reach an agreement or it becomes clear that you won’t be able to reach an agreement.

When you find yourself in court, remember that the court still views animals as property. Knowing this, the easiest, fastest, and least expensive route to gain custody of your dog is to prove that she is your “separate property.” No matter what jurisdiction you reside in, separate property is an accepted standard when reaching a property settlement in a divorce case. Separate property is anything owned solely by one spouse, and there are myriads of evidence to prove this. Of course, your dog has to actually be your separate property, not a dog you acquired jointly.

While there may be slight differences depending on your jurisdiction, usually anything left to you as an inheritance; something you can show ownership of prior to marriage; something you purchased with your own money, not marital funds, and was used solely by you, all of these can denote separate property. It’s probably rare that a dog is bequeathed to someone in a will, although it’s possible and will be discussed later in this book. If you received a dog through a bequest in a will, she is your separate property unless you “commingled” her into the marriage. Commingling most often occurs with money, not living creatures. For example, if you inherited fifty thousand dollars and placed the money in a joint bank account where you both had access to it, it would no longer be separate property. If you had nothing to do with your dog, never took care of her, didn’t like her, gave her to your spouse, or some other action that clearly indicated you didn’t accept ownership of the dog or want her, your case could be decided swiftly. The dog could be awarded to your spouse in the property settlement as she is no longer your separate property due to your actions that basically commingled her into the marital joint assets.

Gifts are also separate property, and if the dog was a gift from your spouse or someone else and you have the papers to prove it, for example, adoption papers in your name, breed registration papers showing you as the owner, a card stating that the dog is a gift to you, or any other document proving the dog was a gift solely to you, she is your separate property and should be awarded to you.

If you purchased or adopted the dog prior to marriage, you need the sales receipt from the breeder or the adoption papers. After reading this book, you’ll know you need to have a petnuptial separate from any other prenuptial agreement to ensure your dog stays if your mate strays, but these documents can go a long way in proving the dog is separate property obtained prior to the marriage. Additional records will bolster your case: dog tax, dog license fee, vet bill, and boarding kennel receipts, as well as any other papers showing that you were the one who bore the expense in providing for your four-legged separate property. Note the use of generic terms: something, it, and property. This keeps the argument in the perspective of the court by using terms recognized in property settlements. If you’re at this stage, you failed to convince your spouse that your dog-daughter belonged solely to you, and the mediator wasn’t able to persuade your soon-to-be ex that your dog needed to stay with you. For court, keep it simple and present the pet as a piece of property that you hold the ownership deeds for.

If you acquired the dog during the marriage and essentially it was a “joint ownership dog,” not your separate property, and she becomes the “bone of contention” in the divorce, you must try to convince the court that you should have custody of your dog. Hopefully you’ll get a judge who’s a dog lover and will be willing to apply the standards used to determine custody of children to the custody of your dog, but don’t count on it. Despite what you hear in the media, whether or not a judge will consider the custody of your dog is uncertain at best. If you haven’t agreed with your spouse or partner who gets the dog and you decide to split, you better know what these standards are, because they will be your best shot of walking out of court with Rover.

The day I showed up for my divorce hearing with no clue about what was going to happen was the last time I ever entered a courtroom without being thoroughly prepared. Since we had no children I hadn’t bothered to research any issues of custody and just assumed that Tiffany, my dog, would be going home with me. I couldn’t have been more wrong. Had I known the two standards that are used in almost every jurisdiction in determining custody of children, I would have harbored no such hopes, because I came up woefully inadequate in each standard. In pet custody cases, if you can get the court to consider the custody issue of your pet beyond the property classification and the answers to these two questions are in your favor, then you’ll have a pretty good chance of getting custody:

1. Who is the primary caretaker?

2. What is in the best interest of the pet?

Sounds simple enough, but in many relationships it’s not that easy to determine. In mine, it was pretty much a slam dunk for my husband. After all, I’d taken off for law school and left Tiffany with him.

Although I failed miserably at proving I was Tiffany’s primary caretaker, it wasn’t because I hadn’t paid attention in law school and didn’t know any tactical legal maneuvers. It’s because I simply wasn’t the person who cared for her most of the time, and that’s the criteria for determining the primary caretaker. It’s the person who cared for the pet most of the time. After all, when you don’t know what the dog eats, or how often to send her outside, or the best way to remove dog slobber from inside car windows, and don’t have any clothes covered in dog hair, then you probably weren’t the person taking care of your so-called companion animal. Hindsight is 20/20, but when you’re looking at the back end of your pet walking away from you, maybe for the last time, it’s little comfort thinking about what you could have done to be designated as the primary caretaker.

You must understand the concept of primary caretaker if you are facing a canine custody dispute. This standard is often successfully argued in property and animal cases. If you find yourself before a judge who’s not going to hear any touchy-feely entreaties, it won’t do you any good to tell him that you and Rover are soul mates and that the two of you most likely will starve to death if separated. Plus, if you were going to do that, you might want to have a more convincing argument than starvation. Dogs don’t lose their appetite very often, and if you’re like me, you’d probably just console yourself with food anyway. You get the picture here—you must use the language of the law. Remember, mediation is informal, court is not.

Your chance for success is greatly increased by presenting simple and convincing evidence that clearly proves you were the person the animal depended on. There are no complicated formulas or hidden nuances that will dazzle the judge. The simple question will be: Did you or did you not take care of the dog? Were you the person who had the vet on speed dial? Tearful dramas are the stuff court TV shows are made of, and yes, oceans of tears roll through divorce court, they just aren’t very effective at turning the tide in your favor for winning custody of your pet.

While lawyers (excluding me, of course) are accused of making outrageous arguments that border on being absolutely ridiculous, there are some things that just won’t fly in court and will not help you get custody of your dog. However, here are ten basic responsibilities that a pet primary caretaker performs. If you have proof that you performed the majority of these, you are well on your way toward proving that you were the primary caretaker of your pet.

1. Did you feed your dog daily? Did you manage your dog’s diet knowing what she could and could not eat?

2. Were you the one who purchased the dog’s food and favorite treats, taking her along to the pet store for a new leash or toy?

3. Were you the one who took the dog to the vet? Are you familiar with any medical issues your dog has? Do you have a file of her medical records?

4. Did you dispense medicine to the dog when needed? Did you sit with her when she was sick: comfort her, notice when she was not feeling well?

5. Did you take your dog with you when you traveled or boarded her at a safe and comfortable kennel when you couldn’t take her with you? (Photos and Facebook are good evidence.)

6. Were you the one who gave the dog her bath and brushed her teeth? Did you take her to the groomer when needed?

7. Did you exercise the dog regularly—take her for walks more than once a day?

8. Did you have playtime with your dog? Do you know her favorite activities? Did you throw balls in the yard, play tug-of-war, or teach her tricks and new activities, such as agility exercises?

9. Did you train your dog or were you the one who took her to obedience classes? Are you the person whose voice she responds to?

10. Are you the one your dog looks to as her “person”? Does she want to be with you? Does she sleep with you? Does she count on you for her needs?

Of all the judges in West Virginia at a time when custody of pets was almost unheard of, we got a judge who took a great interest in the future of our mutually acquired dog, Tiffany. She was one issue I never thought would be part of the divorce. I was prepared to give up my share of almost everything we had acquired together and take nothing from what my husband had before I met him, but when my dog was listed in my husband’s petition, I was blindsided.

The main reason I lost custody of Tiffany all those years ago was because the judge didn’t believe that I was the primary caretaker, and back then I had no idea what that even meant. Sure I had just finished law school and felt ready to take on the best legal eagles out there, but when selecting my classes during law school, I failed to include a family law class. The only divorce I planned on handling was my own, which I was positive would be very simple. That is until I was confronted with this quandary of a term: primary caretaker. Did dogs have different levels of caregivers supplying different services to them? In the few seconds I was given to ponder this question, I realized I was more like the absentee caregiver, and I knew that was not going to be good for my case.

The judge’s patience was nearing an end. Had I or had I not provided the majority of Tiffany’s necessary care during the marriage, and if not, why? In a Legally Blonde moment I blurted out, “Your Honor, the reason I didn’t care for her during the past three years is that I didn’t live with her.”

This proved to be a most unacceptable answer, as the judge stared at me sternly and lobbed another question, which also seemed to call for a simple enough answer that had nothing to do with whether Tiffany’s leash would be in my hand after the proceeding.

He wanted to know what I’d done on vacations during my three years of law school. What this had to do with my seeming lack of care for my dog, I had no idea. I thought maybe he wanted to see who would be providing Tiffany with the most fun in the future, and if there was one thing I knew how to do, it was have fun, so I launched into a lengthy, but honest, answer I was sure would score me points.

“Well, the usual things. I rested, went to visit my family in Pennsylvania, took a few trips to the beach, went skiing, learned to sail, went shopping in Miami once, and took a cruise to recover from trial advocacy.”

“Did you take your dog with you on any of these trips?” he asked.

“Well no, the cruise ship of course didn’t allow dogs, and you know how it is in law school. I doubt I would have been very good company for her … I slept a lot the first few days of vacations and I just wanted to get away. You know what I mean.”

Turned out that whether this had been his law school experience or not just didn’t matter, and fun in the future for Tiffany was the last thing he was looking for. My lack of caring for and involvement with Tiffany over those three years did not meet the standard he kept referring to, and I was unable to provide a shred of acceptable evidence to prove otherwise.

As the final divorce hearing went on, I realized that primary caretaker was a simple enough standard that every divorce court litigant should know. As in child custody cases, John and I could have agreed to almost any type of arrangement for the physical custody of Tiffany. Neither of us had a clear separate property claim to Tiffany. We hadn’t actually purchased her. Our five-year-old nephew found her wandering the streets and he gave her to me. He didn’t give me any type of note or card I could use as proof. Additionally, shortly after I was attached to Tiffany, a neighbor kid claimed it was his dog. When I cried and didn’t want to give her back, my husband gave him one hundred dollars and the family let me keep her. John didn’t get a receipt or he could have proved that Tiffany was his separate property and the decision would have been in his favor. Or, if he’d written a note or card to me saying Tiffany was a gift to me, she could have been my separate property and custody would be mine.

Our judge made it clear that it was of paramount importance that Tiffany go with the person who had taken care of her, provided a stable environment for her, and had been responsible for her safety and health. He wasn’t interested in the future, he wanted to know about the past, and that’s the time period that is examined in custody cases. Judges aren’t interested in what you tell them is going to happen, but what has been your pattern and practice as a parent, whether of a child or a dog.

Perhaps it was because John and I had a prenuptial agreement that was not challenged and just about every issue in dissolving our marriage was already decided before the day of the final hearing, but for whatever reason, our judge was more than willing to deal with the custody of our dog. He began his decision process with the primary care standard, a foundation to build on. Even in cases where an item clearly is property, such as a house or boat, the primary caretaker standard can be applied to a certain extent when dividing marital assets. For example, let’s say you owned a house before you got married and retained the deed in your name during the marriage. If your spouse took care of all the maintenance on the house, made substantial improvements, and added significantly to its value, it’s possible the court would award him (or her) a portion of the increased value and their separate funds used for this purpose. If you’re not in a financial position to pay your spouse his share, the court can order that the property be sold and the proceeds split in order for the equitable distribution or the community property standard be met for the division of the property. This can also happen with other property, such as a boat. If you had a boat and all you ever did was ride in it once in a while, never cleaned it, paid for licenses or fees, or any other expenses, such as maintenance, docking, or storage, you could possibly be left on the shore watching while your ex sails off with the vessel, just like I watched Tiffany and her fluffy tail walking away from me after the hearing.

There are two types of property settlements in divorces: equitable distribution, where things are divided “equitably” based on a number of factors, often giving the judge wide discretion with a result that may not always be fair; or community property, where anything acquired during the marriage with very few exceptions is split down the middle. Depending on the state you live in, one of these standards is used to separate your marital assets, and if one of them is your dog, you better hope you live in the state that applies equitable distribution if you’re depending on the court to make the decision. Think about it, in a community property state the ruling might be that you get the crystal and your spouse gets the dog. No difference, just dividing things evenly is the goal. You have a better chance for a fair, rational decision in an equitable distribution state. In the case of companion animals, the custody issue is all or nothing and doesn’t include a portion of the value of the dog awarded to the noncustodial spouse. Tangible real or personal property’s value can be apportioned; that’s not the case with a living companion animal.

Courts recognize a set of responsibilities that are necessary and make common sense when it comes to raising children. Children are psychologically bonded to their caregivers, and courts realize this emotional bond is important for the child’s developmental journey. Psychologists have successfully advocated that it’s necessary for children’s stability to remain with their primary caregiver. Likewise, veterinarians, animal behaviorists, and ethologists (specialists in the study of animal behavior) validate the bond between animals and their caregivers. Animals have grieved themselves to death at the loss of their companion caregiver. In Vilmos Csányi’s book, If Dogs Could Talk: Exploring the Canine Mind, the Hungarian ethologist recounts the story of a stray dog that came to the university laboratory where he worked. The night janitor took charge of the dog, providing all his care, and the two became inseparable companions during the nights they spent in the lab. At the end of his shift, the janitor often took the dog home with him, and when he didn’t the dog waited anxiously for the custodian to arrive for work each evening. One night the janitor didn’t return to work; he had died. The other workers in the lab soon noticed the dog was missing and began searching for him. He was found sitting outside the apartment building of his deceased master. Every dog owner is convinced of the innate mutual understanding between them and their canine companion. Your animal is bonded with you if you’ve been the person who provided for her care, the one she depended on; you owe it to her to make sure this bond remains intact.

You can successfully argue the primary care standard even though the court won’t grant “child” status to your pet. The key for success is to be organized and present simple evidence. Someone who has no knowledge of the habits, needs, or routines of the animal will not be able to convince the court they were the caregiver for the animal they now want. In fact, such a person would have as much of a chance of getting custody of the pet as a man in a most absurd Texas case.

In this case, three dogs had been purchased jointly by a couple when they lived together before marriage. In time, the couple married and moved from New England to Texas, where a series of unfortunate events occurred. The husband was convicted of several crimes and sentenced to thirty years in jail. After spending more than two hundred thousand dollars on her husband’s legal defense, the wife gave up and filed for divorce, asking for most of their property, including the dogs.

Obviously, having nothing much to do in prison but watch the calendar slowly move toward the thirty-year emancipation date, the husband filed papers asking the family court to award him custody of the dogs. He claimed he was their primary caretaker even though he’d been incarcerated for five years at the time the divorce was filed. Now, I do know many jails have work release programs, but release programs to care for your own dogs is not a prison rehabilitative service. Despite having been unavailable for the slightest need of the dogs for more than five years, the husband wanted them. Ignoring the fact that they couldn’t live in his cell with him, he still wanted them. It was impossible for this guy to think that he’d have someone else care for the dogs until he was released, because by that time the dogs would be more than two hundred and ten years old in human years. He didn’t state in his petition what he was going to do with them or how he’d care for them behind bars, but in our justice system, everyone is entitled to their day in court. You can pretty much file anything you want to if you pay the filing fee in your jurisdiction, but it doesn’t always mean you’ll be heard, let alone prevail.

For whatever reason, disbelief perhaps, the Texas judge was intrigued and decided to rule on the man’s petition in the divorce case. His ruling determined that this man had abandoned the dogs and the wife got custody of the three dogs. The court didn’t even entertain the ridiculous pleading of the man that he was the primary caretaker of the dogs, but awarded custody based on a legal premise used in child custody cases when someone asserts that they are the primary caretaker. If you’re not there, you aren’t taking care of the children or the dogs, and if you abandon your family, you don’t have much of a chance later to ask for custody of your children. In other words, whether you leave for law school or jail (and there are those who think most lawyers should end up at the latter destination anyway) there’s no difference in the eyes of the court. There are, of course, exceptions to every legal principle, and couples often make arrangements that one spouse will go away to school in preparation to better provide for the family, but that clearly was not the case here.

Because there are no statutes that specifically define “pet parents,” there are no mandates of what pet primary caretakers should be responsible for and, as in my divorce case, courts often rely on extensive experience in child custody cases. Our judge’s job was to divide our property in an equitable manner, and this piece of property, albeit on four legs with a heartbeat and a name, was going to go to the person who had taken care of it.

That day in court, my husband had a firm grasp of what a primary caretaker was and not just because his secretary had researched the information for him. He knew because he’d lived it—this was his reality.

The 1979 movie Kramer vs. Kramer, in which Dustin Hoffman and Meryl Streep portray divorcing couple Ted and Joanna Kramer, brilliantly depicts the role of a primary caretaker. Hoffman’s character had no choice but to pick up the slack and learn almost instantly how to care for his son when his wife walked out. In a short time he became an expert parent. His conversations changed, his priorities changed. He learned to cook, wash clothes, do the grocery shopping, pay the bills, and everything else about his son he’d missed while he pursued a career in advertising.

Necessity truly is the mother of invention, and without me in the house, the same thing happened to my ex-husband. He had integrated Tiffany into every aspect of his daily routine. Tiffany was his companion, and he knew what being her primary caretaker was all about.

If you get a judge who will listen to your claim as primary caretaker of your dog, you’ll need evidence to prove it. If you truly have been the primary caretaker, this evidence was created long before the divorce papers were drawn up. If it’s your dog and you were the one caring for it the majority of the time, you’ll have the necessary proof to convince the judge. Keep in mind, most judges who will even briefly entertain such an argument will most likely have as much interest in who gets Rover as which one of you will be eating from the good china. The key is to keep it short, have the proper evidence, and, as hard as it is, keep emotion out of your argument; in other words, “Just the facts, ma’am.”

There was no way I could convince the judge that I’d been Tiffany’s caregiver. Although we’d been married for eight years, we only had Tiffany for half of that time, and for three out of those four years I had been at law school. My claim was just as pathetic as that of the Texas inmate. You can’t feed a dog over the phone or in a prison cell, and you can’t take her to the vet from eight hundred miles away.

As if my absence wasn’t enough, there was my soon-to-be ex-husband with pristinely accurate records of what seemed to be Tiffany’s every meal, veterinary appointment, walk, and bowel movement for the last three years. Yep, he looked just like Dr. Doolittle with his records and his understanding of what was involved in the care and feeding of this particular dog. My ex had learned all he could about divorce law, but most importantly, he had fallen totally in love with Tiffany in my absence, and this was one girl he wasn’t going to let go of. No one in that courtroom could doubt his sincerity about parenting Tiffany.

Were you the one who wouldn’t get off the couch to take the dog for a walk? Were your recently polished nails wet every time the yard needed to be cleaned? Loved the dog from afar, but begged off the bath? Enjoyed riding in your fancy car, but never took your dog along? Have no idea whom the dog goes to when she is sick? Have no idea what “your” dog eats or if she takes any medication? If so, you haven’t been the primary caretaker of the “marital dog.”

All of these activities are major primary caretaking duties, and if you want a pet that your soon-to-be ex is also claiming, it’s essential that you have proof that you were the person this animal depended on for everything from fresh water to adequate dental care. However, if you didn’t perform these duties, you need to ask yourself why you want this dog. On the other hand, if you have a spouse challenging you for custody of your dog and you are the primary caretaker, it won’t be difficult to prove. Again, I caution all couples that are parting ways … rare is the court that will deal with pet custody, so try to work it out between yourselves first.

Common sense will guide you, and you can refer to the same standards delineated in your state’s child custody statutes. In short, what it takes for the day-to-day care as well as the yearly necessities to provide for a child is almost identical to the needs of your pet.

So how do you prove to the court that you were/are the primary caretaker of the pet? You’d think that if you were the one who fed the dog you’d get to keep the dog. Not so fast, though. There are a great deal of caretaking duties necessary for the proper treatment of a dog. Granted feeding is right up there, but many things go along with it. Before we got Tiffany, my husband and I had a dog named Carlyle. I spotted Carlyle one Sunday with his cute little head poking up out of a cardboard box along the roadside with a FREE PUPPIES sign as we drove home from New Hope, Pennsylvania. I begged John to turn around and stop, and before he could protest too much, I had Carlyle on the seat between us headed to his new home.

Carlyle would never come to John when he called him; instead he ran around and around our house each time he got loose, often making John miss his train to the city for work. After futile attempts to lasso him, lure him with food, and chase him into the open garage failed, John discovered one foolproof way to capture Carlyle.

He’d back the car out of the garage, open the back door, and since Carlyle loved a car ride even more than chasing the ducks at the park down the street, he’d gallop down the hill and leap into the backseat. John would close the door quickly, drive the car back into the garage, shut the garage door, and let Carlyle out of the car and into the house.

I took Carlyle swimming at the duck pond and slept in front of the fireplace with him. When he was a puppy I carried him up and down the stairs because he was afraid of them. I took Carlyle for walks, allowing him to carry a big stick that extended out several feet from both sides of his mouth, but he balanced it perfectly, making everyone we encountered move out of his way. I gave him baths on the back patio, I put bows on him for photographs, I jumped in the pool and swam with him.

After our neighbor witnessed one particularly embarrassing Carlyle chase, which resulted in John falling and ripping his pants, he said, “John, why don’t you be the one who feeds Carlyle and maybe then he won’t run away from you.”

Clearly frustrated, John replied, “Feed him? Feed him? If it wasn’t for me, this dog would starve, and he still won’t come to me.”

Sadly, this was true, because in those days I never even prepared food for myself. We operated a restaurant in Center City, Philadelphia, and Carlyle and I just waited for John to bring us food from the restaurant. We’d sit on the back patio together every night waiting for John to trudge down the hill from the train stop with our dinner. I don’t even remember what the kitchen in that house looked like! Yet, even though John performed the most essential and necessary chores of a primary caretaker for Carlyle, feeding, I did everything else for Carlyle and was the one he considered his “person.” I have no doubt Carlyle would have remained with me had our marriage ended then.

Primary caretaker duties include companionship, playing, and anything essential for the well-being and survival of your animal. The following activities are all primary caretaker duties, and you should know as much about these things as you know about your own needs. However, for court, evidence must be documented. Records are gold, so keep track of everything you possibly can if you see a rift in the romantic landscape that could be permanent.

Perhaps you’re thinking: Are you crazy? Who can remember all of this, and how could it ever be presented briefly and in concise form? It can be hard to recall all the details when standing in front of a judge, let alone recite the inventory of your terrier’s toy box. That’s why you must know without doubt that you’ll need proof that you are the person who knows this animal best. You do numerous things for your animal without a second thought. Using this list as a guide, you can create a great record of the life you share with your dog and the services you provide. You’ll need a file with all important papers and documents about your pet’s life with you. This file should include:

1. Dog tax records that clearly show your name as the responsible owner and that you paid the fee. It’s a good idea to attach your personal check or credit card receipt to the invoice.

2. Adoption papers or purchase papers from a breeder showing that you were the person who acquired the dog and paid.

3. All medical records that clearly note you were the person bringing the animal to the vet. Again, attach the receipt for payment.

4. Photographs of important events with you and your pet, including holiday photos, Christmas cards, and vacations. Your dog should also be featured prominently on your Facebook page—she’s an integral part of your timeline!

5. Hotel receipts for stays where you took your pet that show the “pet fee” paid by you.

6. Receipts for any major purchases for your pet, training classes, or other expenses you bore the sole responsibility for.

7. Membership cards to any organization you and your pet belong to. For example, a Tails of Joy club, READ (Reading Education Assistance Dogs), any therapy organizations, or social groups such as an agility club or dog hiking group.

8. Receipts for boarding or pet sitters who have cared for your pet.

9. Your daily calendar noting all important appointments including those for your pet.

10. Pet catalogs addressed to you and correspondence addressed to you and your pet. (Don’t laugh, my dog Sadie often gets more mail than I do!)

I regret that it took a divorce for me to understand that a primary caretaker is nothing more than the person who loved the dog and loved spending time with her, as well as caring for her and meeting and providing for her needs. One of the greatest gifts my dog Sadie gives me every day is that she needs me. Providing for her needs and sharing my life with her is a joy not a chore.

In my absence, my ex and Tiffany had bonded; they became part of each other’s lives. As much as she waited for him to come home at the end of the day, it was clear from his detailed records and recitations that he anticipated this daily reunion as much as she did. If you want the pet only as a grab for power, were not bonded to the pet, and did not provide her care, successfully proving your role in her life as a primary caretaker will be difficult and is a challenge you shouldn’t attempt, because you also have to consider the second standard: in the best interest of the pet. How can it be in the best interest of your dog to be with a person who knows nothing about caring for her or providing for her needs?

Best interest is a broad term that can be interpreted quite narrowly. What is in the best interest of the dog? The answer isn’t hard to determine when considered logically and honestly in light of what truly is best for your dog. Is one partner moving into a high-rise building where the dog will have little chance for outside exercise? Do you have children the dog is comfortable with? Perhaps the children and the dog should stay together. When parents split up, the dog is often a great source of comfort to children. Consider the age of the dog, since change can be stressful for older dogs. Dogs are routine oriented and are often confused by big changes, particularly as they age.

Is one of the partners going to travel a great deal for their job, thus placing the care of the dog in the hands of a stranger? Does one of the spouses work long hours so the dog will be alone the majority of the time? Who can go home at noon to let the dog out? Is one partner moving into a neighborhood near a busy highway? There are so many things to consider, but the primary rule should be: What is best for my dog and will cause the least disruption in her life? This takes a selfless spirit that, unfortunately, is rarely present when couples split up. If you are bonded with your dog, you know her needs and what she enjoys. When you know these things, you know what is best for her. Perhaps a good example of lack of concern for the best interest of pets is exhibited in a Connecticut case in which three horses were caught up in a debacle of a marriage.

Meet the Kellys, whose court case reads like a Saturday Night Live skit. The Kellys, like many divorcing couples, had a lot more going on between them than divvying up their marital assets, which included the three horses. The Kellys seemed quite ill matched and probably should not have wed in the first place. Before meeting Mrs. Kelly, Mr. Kelly had planned to become a priest. Instead he found himself married to an ambitious lawyer, while he labored for the homeless, earning very low wages. If you think someone who had planned a life governed by a vow of poverty would be fair and reasonable in splitting marital property, you’d be wrong. Mr. Kelly’s dreams of a peaceful and reverent life, perhaps in a church rectory, were a distant memory in the marital domicile. This union was far from happy, and it seems once the priesthood goal was abandoned, so was all reason. Mr. Kelly escaped the turmoil of his marriage by viewing porn on his computer. Mrs. Kelly endured by “working” late, not alone, and often not at the office.

There were three or four separations during the marriage, and the predictable marital disputes such as money and affairs, as well as other issues. One such instance concerned a website the couple had created together about their horses. When the marriage started to fail, the husband linked the horse website to another website that expressed his disillusionment with the marriage and his opinion of his wife. Anyone who logged on to the jointly created horse website was immediately routed to www.mywifeisabitch.com. Again, not the best move to ensure celebrating a silver anniversary. After a hearing on marital alimony that evidently didn’t go in the husband’s favor, he broke every telephone in the house and sent emails to all his wife’s relatives calling her derogatory names. (These happenings would never have occurred had Mr. Kelly kept his original career plan.) During the telephone destruction, the Kelly cat and dog as well as Mrs. Kelly had been terrified. The court issued a restraining order that banned Mr. Kelly from the marital home, his wife, the cat, and the dog. Even after these insane actions, Mr. Kelly asked the court for custody of the horses, thinking he had a chance to get them because they didn’t witness the telephone terror rant.

At the time of the final separation, the couple was living in a jointly purchased home that had a horse stable. When the couple separated for the final time, Mrs. Kelly was awarded the marital home, the horses, the dog, and the cat. However, Mr. Kelly appealed, remaining adamant in his pleadings that he wanted custody of the horses.

Unlike the typical family dog, the couple’s horses were expensive show horses and considerable marital assets had been used to purchase them as well as the property with the barn. At the divorce hearing, the wife produced credible testimony that during the marriage the defendant had little or nothing to do with the three horses: Shadowfax, Quinn, and Maestro. The only remote involvement he had with them was creating a complicated financial scheme for purchase of the marital home, which included the horses’ stable. His tenuous claim to the horses was that without his efforts to arrange the financing, they could not have purchased the marital property; thus there would have been no barn and no horses. The wife claimed that he never shoveled one pile of manure, let alone fed, brushed, or exercised the horses. Allegedly he had ridden Shadowfax once, and the details of said ride in the court notes indicate that he was “not an accomplished rider.” One can assume from this note that the husband had not established any type of bond with Shadowfax or the other horses, and most definitely not with the cat or dog.

Similar to the Texas inmate husband, this man had nowhere for the horses to live because he was living at his parents’ house while the divorce was pending. Because he’d been served with a restraining order after the phone incident, it was impossible for him to keep the horses in the marital stable, as he was prohibited from going there.

While this case may seem somewhat humorous, as you read between the lines, it’s a sad example of a power grab for living creatures with no regard to their well-being or a person’s actual relationship with them. Where was he planning to keep the horses? He couldn’t even afford independent living for himself, let alone was he able to pay for board and care for the horses at a commercial stable. Why he wanted them was never spelled out, and he obviously had neither the interest nor the ability to ride them.

When it’s time for you to make your case that the dog belongs to you and depends on you, remember you must be ready with records that reflect the true arrangement you had with the pet. Mr. Kelly had nothing to offer the court as evidence that he was the primary caretaker of the horses; neither was it in their best interest to go with him. Mrs. Kelly seemed quick to point out her husband’s shortcomings in every area, including with the horses, but this isn’t necessary.

Custody issues over your pet can be avoided entirely with a few simple options in the event you and your partner go separate ways. If you have a dog before you enter into a marriage, domestic partnership, or other arrangement with a two-legged being, you must create a document that clearly outlines that the dog is yours and you have no intention of her ever becoming joint property. I suggest you create a petnuptial by following the example at the end of this book.

Don’t risk the future of your dog by failing to protect her in the event you end up in divorce court. Of course, anything can be challenged in court, but by having a petnuptial you will have proof that you owned your dog before the marriage and that your partner entered into it without duress and with full knowledge of the facts.

There are situations where someone should never have custody of a living creature, and if one of these circumstances was prevalent in your relationship, don’t be silent about it. You must speak up if your spouse has ever caused harm to your pet or intentionally placed them in a dangerous situation. If you were a victim of domestic abuse, be very outspoken about the abuse, providing court records if possible, but make certain your spouse does not get the dog under any circumstances. There is a strong connection between animal abuse and domestic violence, which is covered in chapter 4, but the rule here is never, ever leave a pet with someone who has abused you.

If your partner has a severe alcohol or drug abuse addiction, speak up. What happens to the pet when your spouse is drunk or under the influence of drugs? A pet is in danger when in the care of people who can’t take care of themselves.

If your partner has mistreated the pet in the past, even if it didn’t result in physical harm, make it known. Abuse is never a one-time incident, and retaliatory abuse over a human partner directed at a pet is common and a risk you should never allow your pet to bear.

Don’t make a condemnation of your ex’s lack of involvement, but moreover portray the real life you’ve shared and enjoyed with your dog. Under all the anger and accusations when the human relationship ends, there’s another relationship that’s not ending—the one you share with your dog—and you have the ability to show the court that you deserve to continue that relationship. It’s a good idea to develop the no-grudge policy that all dogs possess in dealing with your ex. Think about it, has your dog ever reminded you that you stepped on her paw or forgot to refill her water bowl?

As for the Kellys, the court apparently made the right decision for the horses and awarded them to the wife, who was indeed their primary caretaker. It was also in the best interest of the horses for them to remain living in the barn. However, this was not the basis of the court’s decision. The caretaking and well-being of the animals were obviously considered by the court, because the official opinion made note of the wife’s personal involvement with the animals and the husband’s lack thereof. The horses, the cat, and the dog were distributed in the property order along with the division of finances and other personal items and real estate. Among other things, the former Mrs. Kelly got to retain her interest in her law firm, had her maiden name reinstated, and paid Mr. Kelly for his share in the marital home. Mr. Kelly received no alimony, but he did receive enough money to move out of his parents’ home and was ordered to transfer ownership of the joint website to his wife with the removal of the link to www.mywifeisabitch.com.

Things turned out okay for me and my ex-dog and ex-husband. He took Tiffany back to Hilton Head, South Carolina, where she loved to run after birds on the beach and walk in the evenings with him. I had visitation every year, and sometimes more, and she never forgot me. As time went on and I was busy establishing a legal career, traveling, and working long hours, I knew the right decision had been made. I’d think of her safe and content with a person I once loved very much and knew he loved her and would never let her down.

Of course, the time came when I got the call I will never forget. It was July 16, 1999, the day John Kennedy Jr., his wife, and her sister perished in a plane crash off the coast of Martha’s Vineyard. While John and I had remained mostly cordial after our divorce, we were not close, but when he said hello I knew something was wrong. With a halting voice and obvious crying, he told me that Tiffany was gone. He relayed how in past months he’d had to carry her up and down the stairs. He told me how she had no energy, slept most of the time, and described a most desolate situation. He told me that the day before she’d quit eating and had gotten very sick.

He’d taken her to the vet and was given a very grim prognosis, so he took her home and prepared to say good-bye. He told me he’d spent several hours talking to her, stroking her fur, and showing her pictures of the three of us. He’d let her lick ice cubes, and then he carried her down the steps for the last time. He put her in the passenger seat of his convertible and took her for one last drive to the beach she loved. Through his tears he assured me she had not been in pain as he carried her to the beach and sat down to hold her as the seabirds gathered. John said Tiffany sniffed the sea air, looked at the birds, and put her head on his chest as if to say she was ready to leave—no use looking at birds you can’t run after anymore. And then … she was gone.

I cried for everything lost with her passing. I cried for the end of my marriage that I’d never grieved for. I cried for the little puppy that my nephew had brought to me in Columbia, South Carolina, saying in his small kindergarten voice, “Aunt Pat, I found you a dog.”

I cried remembering the time she threw up in my car and seemed frightened I would be angry. I wasn’t. I cried thinking about the night after she was spayed when I stayed up all night giving her ice chips. I cried as I recalled watching her burying treats in the yard when she first came to live with us like she was saving them in case there was no food one day. I remembered her riding in the basket on my bike, her soft fur blowing in the wind. I cried for all the memories I didn’t get to make with her because of decisions I’d made. But I didn’t cry for the life she’d had with John—it was the best one she could have lived.

If you can walk away from a divorce or the end of a relationship knowing that the right decision was made for your dog, then you will have no regrets over her. We all have regrets, but we don’t need to have them about our dog if we keep her best interest foremost and provide for her needs. Tiffany brought us together in the end; we were able to let go of a lot of bitterness and remorse. Grieving over our dog enabled us to mourn for what we also lost as a couple, but it enabled us to move on. We no longer needed to catch birds that we were just too tired to chase.

ESSENTIAL ELEMENTS WHEN DIVORCING WITH A DOG

1. Begin before the relationship starts, making sure you have all the proper documentation to show this was your pet before the relationship began.

2. If you haven’t done that, try to work things out with your spouse/partner and get a notarized agreement that your pet is your separate property.

3. If that doesn’t work, find a mediator, preferably one who has experience in animal custody issues, and if not in child custody issues. Your State Bar Association or Supreme Court will have a list of mediators and what they specialize in.

4. Work hard during the mediation to present the best evidence for retaining custody of your pet.

5. If you reach an agreement, have the mediator put it in writing, get it notarized, and make it part of any property agreement you reach in your divorce.

6. If you are unsuccessful at mediation, be prepared to make the separate property argument in court. Unless you know your judge is sympathetic to animal issues and will consider a pet custody issue, this is your best tactic.

7. If your pet clearly is not your separate property, remember the two standards used in child custody: primary caretaker and in the best interest of your dog. Be ready with clear and convincing evidence to show you fulfilled these standards.

8. Remember the end of a marriage doesn’t have to mean the end of your relationship with your dog.

9. If you share custody of your dog with your ex, make sure your dog has continuity in her life and make visitations as easy as possible. Don’t hold on to grudges.

10. Before you think of getting into another relationship, make sure you’ve done everything you can to make sure your dog is separate property.

After a divorce almost everything in your life changes, often including where you live. If you are not retaining ownership of the marital home and not purchasing a new house, you most likely will be renting. Don’t get discouraged if all of the rentals available in your area state they don’t allow pets. Understanding both sides of the pet rental dilemma is essential in order for you to obtain new housing with a lease that includes your dog.