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    Wisconsin Lawyer
    April 01, 2017

    As I See It
    Following Alaska's Lead: A Wisconsin Pet Custody Statute

    When a couple splits, custody of pets should be determined by a law that acknowledges that animals are companions, not merely possessions like the household furniture.

    Christopher Sean Krimmer

    dog

    The cost of a vacation for four to Cancun, Mexico? $5,000. The price of a 2016 BMW 500 series automobile? $54,000. The worth of “man’s best friend?” Priceless. Unless you are in family court, where a pet’s value is reduced to the actual “fair market value” of the dog or cat. What could the dog fetch, pun intended, on the open market? Once that value is determined, the family court awards the dog to one of the spouses at that “fair market value.” For many pet owners, the prospect that their beloved dog or cat is treated no different than their furniture or jewelry, rather than a living and breathing companion, is difficult to accept.

    Our pets provide so much more value to our lives beyond what they could be sold for on Craigslist. This special bond between people and their animals is evident by how much we spend on them. In 2016, Americans spent an estimated $62.76 billion on their pets. Clearly, “Fluffy” has more value to us than the $800 we may have paid for him. Unlike our other belongings, our pets are living beings to which we often have an emotional connection. We provide them with food, shelter, play time, and walks and clean up after them on walks; in turn, they provide us with unconditional love, companionship, and psychological well-being.

    Pet Custody Legislation

    In recognition of this special bond and significance of pets, some states are considering legislation that addresses pet custody in divorce. The prospect of a pet custody statute in Wisconsin would not be a radical idea. Wisconsin was the first state in the nation in which legislators proposed a pet custody statute. Representative Sheryl Albers and Senator Carol Roessler introduced legislation in 2007 that would have allowed family courts to award joint placement of a pet if the parties agreed to joint placement, to award the possession of the pet to one party, or to require that the pet be surrendered to the local humane society or animal shelter. The bill did not pass but the need remains.

    Wisconsin has a history of enacting statutes that reflect the special significance of pets and society’s interest in protecting animals from cruelty. Among the statutes concerning pets are the following, all in the criminal code:

    • “No person may treat any animal, whether belonging to the person or another, in a cruel manner.”1

    • “No person may take the dog or cat of another from one place to another without the owner’s consent or cause such a dog or cat to be confined or carried out of this state or held for any purpose without the owner’s consent.”2

    • “No person may transport any animal in or upon any vehicle in a cruel manner.”3

    • “No person owning or responsible for confining or impounding any animal may fail to supply the animal with a sufficient supply of food and water as prescribed in this section.”4

    • “No person may abandon an animal.”5

    In areas outside of family law, our pets do have certain rights and, yet, in the one area of law in which emotions run highest, we ignore this special relationship between the parties and their pets. It is because of the natural progression of these laws and protections for animals that the family court should have a unique legal standard specific to pets.

    Possible Legal Standards for Allocating Pets to Divorcing Spouses

    The question then becomes what is the best legal standard to apply for the awarding of a pet in divorce. The current legal standard for property in divorce is a presumption that the property will be divided equally.6 This leaves two options for the court. It can award the pet to one party and attribute the fair market value of the pet to that party when dividing and reconciling the other assets of the marriage. Or, as has been done in some instances, the court can allocate the “use and possession” of the pet between the parties, much like a placement schedule. This often makes sense if the parties have children who are deeply attached to the pet and the pet follows the children’s placement schedule.

    Christopher S. KrimmerChristopher S. Krimmer, U.W. 1997, is a partner with DeWitt Ross & Stevens S.C., Madison, where he practices in family law.

    In practice, these “custody and placement arrangements” have their challenges. First, if the parties do not have children, the dog or cat is the only reason the former spouses must continue to have contact with one another. If the divorce was particularly acrimonious, the weekly contact with one another for years after the divorce will generally lead to more conflict, litigation, and legal fees.

    Second, there are often disputes regarding the pet’s expenses and care. The parties need to agree on a veterinarian, the medical care for the animal, food, activities, and so on. These are not inconsequential amounts. The cost of surgery on a dog or cat can easily surpass several thousand dollars.

    What happens when one former spouse has the financial resources to pay for whatever is necessary to give the pet the best chances for survival, and the other former spouse lacks those resources? What if one former spouse wants to move forward with an expensive medical procedure and the other feels the pet should be spared any future suffering and be euthanized? The owners might have different but valid perspectives of what is a compassionate response to an ill dog or cat.

    Third, the sharing of placement of a pet can also be used as a form of control and manipulation over the former spouse, which is not healthy for the other spouse or for the pet. It is not uncommon for a perpetrator of domestic abuse to threaten harm to the animal as a form of abuse of the other spouse. This dynamic of domestic violence is already reflected in the law involving domestic abuse restraining orders. The court can order as part of the domestic abuse injunction that the defendant refrain from harming, concealing, or disposing of the pet, or the court can allow the victim to retrieve the pet and keep the pet in his or her care.7

    Finally, some courts will not even entertain the idea of a shared placement schedule for a dog or cat simply because the property division statute says nothing about awarding the “use and possession” of a piece of property but awards the property to one spouse. The statute does not reference any authority for a court to award the parties alternating weeks for the use of a lamp or piece of artwork. The same might be true regarding a pet. A legal standard specific to pets would assist the courts and litigants in determining how to resolve issues involving the special nature of a pet.

    Alaska Statute is a Possible Model

    To much fanfare, Alaska recently enacted a pet custody statute that adopts the “well-being of the animal” as the legal standard for awarding a pet at divorce.8 It is separate and distinct from the state’s property division statute. The statute does allow for one party to be awarded the pet or to have joint ownership of the pet after the divorce. This “well-being” legal standard seems to find a fair equilibrium between the harsh treatment of the animal as nothing more than a piece of property versus the more exacting and involved “best interests” standard that we see in the context of child custody and placement.

    The Alaska statute is silent regarding the statutory factors the court should weigh in determining the pet’s well-being. The Alaska courts exercise their own discretion in determining which factors are important in determining the well-being of the animal.

    Wisconsin could enact a pet custody statute that adopts a “well-being of the pet” legal standard. The statute could follow Alaska’s lead and allow the courts the discretion in determining the relevant factors, or the pet custody statute could set forth a set of considerations.

    These well-being factors could include whether either party owned the pet before the marriage; who purchased the pet; was the pet a gift to one spouse; who provided the daily care to the pet; whether either spouse has any special medical needs for which the pet’s assistance is required or symptoms that the pet substantially alleviates; the placement schedule of any children; each party’s residence and accommodations that are available to the pet (for example, a large yard versus a downtown condominium or apartment); any instances of domestic violence between the parties; any acts of cruelty or harm to the pet or any animal; and whether one or both parties are in a financial position to provide the pet’s care, food, and shelter. 

    A pet custody statute would provide the courts and parties to a divorce or separation with a clear legal standard of how to best recognize the special relationship that pets play in our families. Anyone who has come home after a long day at work knows firsthand the joy and happiness a dog’s greeting provides. We should not diminish our pets’ significance by equating them to furniture and appliances under our family law statutes.

    Endnotes

    1 Wis. Stat. § 951.02.

    2 Wis. Stat. § 951.03. 

    3 Wis. Stat. § 951.05.

    4 Wis. Stat. § 951.13.

    5 Wis. Stat. § 951.15.

    6 Wis. Stat. § 767.61(3).

    7 Wis. Stat. § 813.12(4)(a).

    8 Alas. Stat. § 25.24.160(a)(5).




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