Pet Custody in LA

Los Angeles Times, Jan 2005

To Love, Honor and Bellyscratch: Marriages come and go. Judging by the rising number of pet custody disputes, though, some passions endure.

To-Love-Honor-and-Bellyscratch-1 To-Love-Honor-and-Bellyscratch-2

(Also at Los Angeles Times)

In a vet’s office in Brentwood, Iris sits with her divorce lawyer and Leigh sits with his, both of them waiting in opposite corners of the room for a long-haired Pomeranian named Lemons, the pet they bought together when they were happily married. Today, now split, they’re here to settle who gets Lemons. Iris’s case is that she fed the dog, but Leigh insists he walked it. As with most everything else in this marital meltdown, the dog has become a bone of contention.

As the vet brings Lemons in, both Iris and Leigh spring to life, both of them calling and patting their hands on their knees. “Here girl! Come on Lemons!” The poor creature looks confused for a moment. Then he bounds over to Iris. It’s settled — the dog prefers mom. In a divorce case, this shows a greater emotional bond between Iris and Lemons and such is the force of these calling contests that ultimately, in an out-of-court settlement two months later, Iris will be awarded full custody of the dog. In return she will compensate Leigh $1200.

“These things are a big deal,” says Iris’s attorney, J. Michael Kelly of West Hollywood. “First you need a neutral ground, like a vet’s office — not the regular vet, though. Beach is good. You could go to a park as long as there aren’t too many other dogs around, you don’t want Lemons to be distracted. For a couple of days beforehand, the dog has to stay with a third party — Lemons stayed with a friend — so that nobody has an unfair advantage, which you would if you fed the dog that morning. But you still have to be careful. People always try things. They rub their hands with sausage so the dog will come to them. That’s why you need the vet there, to check their hands.”

Leigh and Iris are not alone. A combination of a vigorous divorce industry and an equally vibrant pet industry — pet spending is expected to generate a record $34.3 billion this year — has led to a dramatic increase in pet custody disputes during the last decade. Though accurate figures are yet to be compiled in such a fledgling field attorneys and legal scholars anecdotally cite up to a 100-fold increase in the frequency of these cases since 1990.

The lengths to which couples will go for their pets knows no limit. Smearing sausage on your hands is only the half of it. Kelly has dealt with cases in which dogs are traded in divorce settlements for sums of up to $30,000. “I’ve seen animals traded for jewelry, for part of a pension plan, for a fraction of the cost of a house,” he says.

Then there are the legal fees. While Leigh and Iris spent roughly $8,000 contesting Lemons, in 2000, one San Diego couple, Stanley and Linda Perkins – an anaesthesiologist and a bespoke publisher, respectively, who owned two Porsches, a Ferrari and a house with an ocean view – spent $146,000 on their divorce battle, roughly half of which concerned custody of a pointer-greyhound mix named Gigi. Among evidence shown to the court was a “Day-in-the-life-of-Gigi” video, shot by Linda, featuring Gigi snoozing under her chair at work, playing at the beach and cuddling at home. She got the dog.

Typically, those involved in pet custody cases are affluent, childless couples — a description that fits both Iris and Leigh and Perkins. According to surveys by the American Pet Products Manufacturers Association, pet ownership has grown in two specific demographics — young couples who are waiting longer to have children, and baby boomers whose children have grown up and left home. These childless couples develop the strongest attachments to pets. They treat them like children — the kind you can spoil with gifts and dress in cutesy outfits without worrying whether they’re doing well at school or making the right kinds of friends.

And so animal custody cases increasingly resemble child-custody cases, and can be just as bitterly fought and expensive. Just as child psychologists are employed to determine the child’s living conditions and health with each parent, so vets and animal evaluators are employed for pets. Like children, pets suffer from being tussled over, and in some ways to a far greater extent. According to Deanie Kramer, a mediator for DivorceResource.biz, one high-profile news anchor had his dogs flown back and forth from New York to Los Angeles as part of an elaborate visitation agreement. “I also had a bizarre case with a parrot,” she says. “Before he gave it to her, he taught it to say [obscenities] just to embarrass her.” There are also horror stories of spouses killing the pet to spite the other; stories of pups in washing machines, cats in microwave ovens, a strangled macaw.

The key difference between child and animal custody cases, however, is that in the former, the welfare of the child is paramount, whereas the animal’s interest rarely has a bearing. The letter of state law in all 50 states is stark on the subject — a pet is property, “chattel,” more like a piece of furniture than a family member. To arrange joint custody for a dog is legally equal to arguing a visitation schedule for a sofa, and many judges apply the law literally, concerned not to burden the courts with yet more custody arrangements to monitor. But then other judges, often pet owners themselves, understand the emotional difference between relating to a dining table and relating to a dog. And increasingly, these judges have ruled to protect this relationship.

That bodes well for Sandra Toye, one of a growing number of lawyers in the relatively young field of animal law, whose mission it is to enhance the legal status not merely of pets, but of all animals.

In her office on Melrose and Vine, Toye’s pet rats scurry about on her desk, up her arms and around her shoulders. “I’m not some animal rights nut,” she says, extricating a rodent from her hair. “I’m level-headed, I’m conservative, I eat meat. But I’m on a mission to show that animals have value in excess of their replacement value.”

In the interests of animals — always a pre-condition with Toye — she has fought and won dozens of custody disputes in recent years, earning fees of up to $100,000 at a time. (Pet custody is not a poor person’s sport). Toye relishes a fight. When her client’s cat was stolen by an ex-boyfriend — who then claimed that the cat had run away — she secretly staked out his house for weeks, shooting video of the cat going in and out, and she threatened him with hefty emotional distress lawsuits until he buckled.

More recently, she won custody of a border collie named Pepperoni for her client, Larry. The fallout here was not between Larry and his wife, but between Larry’s wife and Pepperoni’s breeder, Bridget, who once had been good friends. Two years prior, Bridget had given Pepperoni to Larry’s wife without any exchange of money or signing of contracts. Then when things went sour, she snatched Pepperoni back again, by force, at a dog show, claiming that the dog was in fact hers.

Though not a divorce case, Toye employed many of her custody arguments, such as using property law to her advantage. “My argument was that if this dog was proved to belong to my client,” she says, “then I needed to ensure that it retained its value.” It’s an argument that might apply to family heirlooms or works of art, which require specific maintenance. So in Pepperoni’s case, she employed evaluators to compare the living conditions of Bridget, who kept 50 other dogs in her house, to those of Larry, who keeps seven, all of which he competes in herding trials. Vets also were marshalled to their cause.

“I claimed he was a showdog even though really he wasn’t,” says Toye. “We wanted to take the case to a superior court, a court of unlimited jurisdiction, so we had to prove that damages are in excess of $25,000.” And after eleven months, and $50,000 of legal fees, Bridget conceded and returned Pepperoni to Larry for good.

“I know it was financially dumb,” says Larry, “but my mindset all along was ‘We’re not going to let the bastard’s win.’ This is an animal that I love. I have no children, so [my dogs] are all my friends, my family, my teammates. To steal someone like that out of my house is emotionally devastating.”

The disconnect between the law and Larry’s heartbreak is symptomatic of the inconsistencies that bedevil animal law in general. For instance, while Pepperoni is the legal equivalent of a sofa, he is nonetheless protected by anti-cruelty laws. Of course, Pepperoni is a sentient being, capable of experiencing cruelty in a way that a sofa is not, but then – the inconsistencies continue – why should “food” animals, who are as feeling and emotionally alive as Pepperoni, be for all practical purposes exempt from cruelty legislation? These discrepancies go to the heart of society’s schizophrenic attitudes towards animals.

“If you took a dog,” argues Cory Evans, an attorney from San Francisco, “and you pumped a pound of food into its stomach every three seconds, four times a day, for three weeks until the dog was so diseased it couldn’t move to defend itself from rats eating it alive, then people would lose their minds. But do it to a ‘food’ animal to make foie gras and people aren’t so shocked.”

Still, societal sands are shifting. California recently has passed a bill banning the production of foie gras (Senate Bill 1520). And the pressure group, In Defense of Animals as succeeded in changing the term animal “owner” – with its property connotations – to animal “guardian” in the wording of city codes in San Francisco, West Hollywood and elsewhere throughout the country. In cases of veterinary malpractice, juries are now setting monetary values for animals far in excess of their market value. In Orange County, for example, a $10 mutt who was killed in a case of veterinary malpractice was deemed to be worth $30,000 in damages and $9,000 in legal fees. And although courts frequently will bend over backwards to accommodate the dying wishes of a pet guardian for the animals he leaves behind, if that request is that the pets be put down, increasingly the wish is refused. These cases are particularly unusual in that they defy the owner’s wishes in favor of the interests of the animal. (Moral of the story: If you want to kill your pets, do it while you’re alive.)

The wave of pet custody cases joins this list of small victories for the animal-law community. The more courts recognize the value of the relationship between a human and a pet, then the further animal-welfare issues are nudged in animals’ favour. But they beg certain questions: Is there a slippery slope? Could pet custody rulings affect the treatment of lab rats or abattoir cows? Bruce Wagman, an attorney and professor who teaches five university courses in animal law (including Berkeley and the Hastings Law School in San Francisco), is wary of getting ahead of himself. “Pet custody is just one way of taking down the wall, brick by brick,” he says. “For courts to recognize the value of a human/animal relationship would be one of the bricks.”

Wagman, however, admits to holding some “radical” views. He dreams of a world without cruelty to animals. Like Larry, he has no children. “I don’t like children,” he says. “I never wanted them and neither does my wife.” Instead he keeps three dogs and four cats. He refers to them as “animal children. In terms of my love and passion, I know it’s as strong as anyone else has for their human children.”

With Wagman’s help, the Animal Legal Defense Fund now issues a brief, called an amicus curiae (friend of the court), which implores the court to consider the animal’s interests in pet custody disputes. The brief, which Wagman wrote, argues for the emotional consciousness of animals and the strength of the bond with humans, citing a survey “[which] revealed that more than half of companion animal owners would prefer a dog or a cat to a human if they were stranded on a deserted island. Another poll revealed that 50% of pet owners would be ‘very likely’ to risk their lives to save their pets.”

Clearly the greater the emotional bond, the better the animal’s interests are protected, which would explain why dogs are, by far the most contested pets in custody cases. Cats come in a distant second, and then horses and even monkeys. (No iguanas as yet.) The sheer love and slipper-fetching devotion that canines give their owners makes them much harder to part with than, say, cats, who as even cat lovers admit, are more in it for themselves. Furthermore, dogs are of particular comfort in these hectic, uncertain times — with the insecurity of the workplace, the fragility of families, the demise of community and the sheer pace of modern living. Raoul Felder, the noted celebrity divorce lawyer from New York, attributes the rising incidence of pet custody to “an alienated society, especially in the big cities, where you don’t know the guy across the hall.” Bob Vetere of the American Pet Products Manufacturers Association points to “lifestyles becoming more frantic, and the world becoming more of a scary place. In a divorce, the pet is usually the one source of calmness,” he says. “You can yell at a dog all day long, but as soon as you pick up a tennis ball, he’s your best friend. Yell at your spouse all day long and a tennis ball ain’t going to do it.””

Certainly, a dog’s value is only heightened during a divorce, a time when warring spouses reach out to their pets all the more. No other animal provides quite the same unconditional loyalty at a time when existing bonds of loyalty are being torn asunder in the courts. And this is the irony – that the case for animals being recognized as members of the family should be raised in the context of families breaking up.

Yet perhaps it is only fitting that our relationships with animals should gain in force as our human relationships degrade. Perhaps it is in the field of human relationships that animals have the most to teach us. Besides innocence, simplicity and the lust for survival, a dog can also teach us fidelity, perseverance and as writer Robert Benchely once remarked “to turn around three times before lying down — very important traits in times like these.”