Sometimes the clearest and simplest laws need to be revisited because they produce unjust and unacceptable outcomes. This is certainly the case when it comes to determining custody of a companion animal upon the breakup of pet parents. The traditional law that exists in every state couldn't be clearer. Pets are viewed as property. As such, they go to the party who can demonstrate proof of purchase or adoption. This black and white analysis though, utterly fails to consider what might be best for the pet. The result of this simplistic, and in my view, antiquated framework, is all too often a reduced quality of life for voiceless animals involved.
Over the course of the past few years, a handful of enlightened judges have begun contemplating the "best interests" of the pets when deciding a custody dispute. There are also a few state legislators floating the idea of changing the law to require consideration the pets' best interests when determining custody. Sweeping changes in the law, however, often take many years. In the meantime, it is up to responsible pet parents everywhere to work out custody issues ahead of time, within a love contract.
A love contract is an evolved variation of a pre-nuptial, post-nuptial or cohabitation Agreement that deals with any relationship issues beyond splitting property upon a breakup. There are several crucial steps to creating an effective pet clause within one's love contract:
- Examine the nature and quality of each pet parent's relationship to existing pets. Who provides more exercise, stimulation and affection? Who arranges needed medical care and grooming? Who provides for socialization and facilitates pet friendships? Who takes the lead in ensuring that a pet's optimal nutritional needs are met? Here, we look at who feeds the pet unhealthy table scraps; who looks to save a few dollars by buying cheap pet food; and who buys filtered water for the human members of the family yet gives the pets tap water to drink? Who best promotes the pet's self-esteem by speaking in more positive and encouraging tones? Who ensures that a pet has proper outerwear and footwear for cold weather outings? (If you think any of this is silly, please relinquish your future custody claims now).
- Who will likely be in a better future position to provide adequate space and financial resources for an optimal pet quality of life?
- Could a shared custody arrangement work? Depending upon geographic proximity, this could be alternating weeks or months.
- Are children involved? If so, I recommend that you incorporate a presumption that pet custody mirror child custody. The law does not allow for advance contractual child custody agreements. So here, we are simply providing that the pets and children will stay together.
- Select your own decision maker. No matter how comprehensive and forward-thinking our pet clause is, there will still be occasions when the parties vehemently disagree on custody. Given the as yet unenlightened state of our statutory and case law, both parties should resolve to stay out of a courtroom at all costs. As an attorney, I am sometimes asked by the parties to be the default decision maker. Whether you select an attorney, a trusted friend or a tribunal type arrangement, it is critically important that you give your arbiter clear tools with which to make an informed custody decision. I provide that a pet psychologist interview the pet and evaluate the nature and quality of their interactions with each pet parent. I also allow each pet parent to provide up to five witnesses who can vouch for their pet-parenting fitness and ability, or the other party's lack thereof . As a LAST resort, we ask each pet parent to submit to a polygraph and answer questions about whether they have ever been unkind or insensitive to this pet or any other pet.
Some time and effort spent dealing with these pet custody issues on the front end, can help ensure that your precious pet isn't traumatized in the event of a breakup.
Ann Margaret Carrozza is an Estate Planning Attorney who served as a New York State Assemblywoman. She is a frequent contributor to television and print media outlets.