A beastly business: pets and divorce

The first rule of divorce is 'don't get mad, get everything' - and that now includes Fido and Felix. Sanjiv Bhattacharya meets the pampered pets caught up in bitter custody battles
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The Independent US

In a vet's office in Los Angeles, a wife sits with her divorce lawyer and her husband sits with his, waiting in opposite corners for a Pomeranian we'll call Lemons, the pet they bought when they were happily married. Today, now split, they're here to settle who gets Lemons. Her case is that she fed the dog, but he insists he walked it. As with almost everything in this marital meltdown, the dog is a bone of contention.

In a vet's office in Los Angeles, a wife sits with her divorce lawyer and her husband sits with his, waiting in opposite corners for a Pomeranian we'll call Lemons, the pet they bought when they were happily married. Today, now split, they're here to settle who gets Lemons. Her case is that she fed the dog, but he insists he walked it. As with almost everything in this marital meltdown, the dog is a bone of contention.

As the vet brings Lemons in, wife and husband spring to life, both calling and patting their knees. "Here girl! Come on Lemons!" The creature looks confused, and then bounds over to the wife. It's settled - Lemons apparently has a greater emotional bond with her. Such is the force of these calling contests that, in an out-of-court settlement two months later, she'll be awarded full custody. In return, she will compensate her ex with $1,200 (about £630).

"These things are a big deal," says the wife's attorney, J Michael Kelly. "First, you need a neutral ground, like a vet's office - not the regular vet, though. A beach is good. You could go to a park as long as there aren't too many other dogs around. For a couple of days beforehand, it has to stay with a third party so nobody has an unfair advantage, which you would if you'd 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."

This couple aren't the only ones at war over a pet. The combination of a vigorous divorce industry and an equally vibrant pet industry has led to a huge increase in pet custody disputes on both sides of the Atlantic. And the length to which people will go to hold on to their pets knows no limit. Kelly has dealt with cases in which dogs are traded in divorce settlements for sums of up to £20,000. "I've seen animals traded for jewellery, for part of a pension plan, for a fraction of the cost of a house," he says. In a recent UK survey by Direct Line Insurance, more than a third of respondents said they'd take legal action to keep their pets in a divorce, while one in six said they'd spend as much as £10,000 on the battle.

Typically, those involved in pet custody cases are affluent, childless couples. Pet ownership has grown in two particular demographics - young couples who are waiting longer to have children, and couples whose children have grown up and left home. These couples develop the strongest attachments to pets. They treat them like children - the kind you can spoil with gifts and dress in cute outfits without worrying whether they're doing well at school or have the right kind of friends.

And so animal custody cases increasingly resemble child custody cases, and can be just as bitterly fought and expensive. While child psychologists are employed to determine the child's living conditions and welfare with each parent, so vets and animal evaluators are employed for pets. And, like children, pets suffer in the tussle.

According to Deanie Kramer, a mediator for Divorce Resource Inc, a TV news presenter had his dogs flown back and forth from New York to Los Angeles as part of a visitation agreement. "I also had a bizarre case with a parrot," she says. "Before he gave it to her, he taught it obscenities just to embarrass her." There are 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 interests are rarely considered. Legally, a pet is property, a "chattel", like a piece of furniture. To arrange joint custody for a dog is legally equal to visitation rights over a sofa, and most judges tend to apply the law literally. But some judges, often pet owners themselves, understand the emotional difference between relating to a dining-table and relating to a dog. Increasingly, these judges rule to protect this relationship.

That bodes well for Sandra Toye, one of a growing number of lawyers in the new field of animal companion law, whose mission is to enhance the legal status not just of pets, but all animals. In her office, Toye's pet rats scurry about on her desk. "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."

Toye has fought and won several custody disputes, earning fees in excess of $100,000. (Pet custody is not a poor person's sport.) She relishes a fight. When a client's cat was stolen by an ex-boyfriend - who then claimed the cat had run away - Toye staked out his house for weeks, taking photographs of the cat going in and out. She then threatened him with hefty emotional distress lawsuits until he buckled.

Recently, she won custody of a border collie we'll call Pepperoni. The case was not between a husband and wife but between the client's ex-wife and Pepperoni's breeder. The breeder had given Pepperoni to the wife, her friend, with no exchange of money or contracts. Then, when the marriage went sour, the breeder snatched Pepperoni back by force, claiming that the dog was hers. After 11 months, and more than £20,000 in legal fees, the breeder conceded and returned Pepperoni to her client for good.

"I know it was financially dumb," says the client, "but my mindset all along was, 'We're not going to let them win.' This is an animal I love. I have no children, so [my dogs] are all my friends, my family, my team-mates. To steal someone like that out of my house is emotionally devastating."

The case demonstrates the inconsistencies that bedevil animal law. Pepperoni is the legal equivalent of a sofa, but he is nonetheless protected by anti-cruelty laws. Pepperoni is also a sentient being, capable of experiencing cruelty in a way that a sofa is not - but then, why should "food" animals, who are as feeling and emotionally alive as Pepperoni, be for all practical purposes exempt from cruelty legislation?

The sands are shifting, though: the animal-rights group In Defense of Animals has succeeded in changing the term animal "owner" - with its property connotations - to animal "guardian" in city codes in places such as San Francisco and West Hollywood. In cases of veterinary malpractice, juries are setting monetary values for animals far above any market value. In Orange County, when a three-year-old bitch called Shane died through malpractice in a veterinary clinic, the pet's owner, Marc Bluestone, sued and was awarded $30,000. The jury said that although the mutt had a $10 "market value", she had a special worth to Bluestone. They also awarded $9,000 for vet's bills.

The wave of pet custody cases is also a small victory for the animal-law community. The more courts recognise the value of the relationship between a human and a pet, the further animal-welfare issues shift in favour of animals. But are there other implications? Could pet custody rulings affect the treatment of lab rats or abattoir cows?

Bruce Wagman, an attorney and professor who teaches courses in animal law, is cautious. "Pet custody is just one way of taking down the wall. For courts to recognise the value of a human/animal relationship would be one of the bricks." Wagman dreams of a world without cruelty to animals. He has no children: "I never wanted them and neither does my wife." He keeps three dogs and four cats, referring to them as "animal children. In terms of my love and passion, I know it's as strong as anyone has for their human children."

With Wagman's help, the campaigning Animal Legal Defense Fund now issues a friend-of-the-court brief in certain cases, imploring the court to consider an animal's interests in pet custody disputes. The brief cites a survey showing that "more than half of companion animal owners would prefer a dog or cat to a human if they were stranded on a desert island. Another poll revealed that 50 per cent 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. This explains why dogs are the most contested pets in custody cases. Cats come a distant second, then horses. The sheer love and slipper-fetching devotion canines inspire makes them harder to part with than, say, cats, which even cat lovers admit are in it for themselves. Dogs are particularly comforting in times such as these, with job insecurity, the fragility of families, the demise of community and the pace of life.

Raoul Felder, a celebrity divorce lawyer, attributes the growth in pet custody cases to "an alienated society, especially in 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 a more scary place". In a divorce, the pet is often the one source of calm: "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."

A pet's value is heightened during a divorce, when warring spouses reach to their pets for unconditional loyalty as other bonds are torn apart. And this is the irony: that the case for animals being recognised as members of the family should be raised in the context of families breaking up.

Yet it is fitting that our relationships with animals should strengthen as our human ties degrade. Perhaps animals have a great deal to teach us here. Besides innocence, simplicity and the will to survive, a dog can teach fidelity and perseverance and, as the writer Robert Benchley said, "to turn around three times before lying down - very important traits in times like these".