By Gina Spadafori
When it comes to pets in matters of divorce, the fact that we care so much about our animal companions is good news, because it means the courts are starting to look at animals as more than mere property.
Unfortunately, the fact that we care so much about our animal companions is also bad news, making pets a high-value item in the nastiest of marriage dissolutions.
“If you’ve got a mean divorce, whatever weapon is handy they’re going to use,” says prominent Manhattan divorce attorney Bernard Clair. “Money. Property. Children. Pets. Find what the other person wants, and want it even more.”
Fortunately, Clair sees a trend toward a more humane handling of pets in divorce, perhaps driven by the higher status animals have in our lives.
“If a couple is at a point where a pet is loved enough to become an issue, then they need to ask a tough question and find the answer: ‘What is best for this animal?'” he says. “The heart has to rule.”
The heart, along with a dose of human decency, is a better arbiter of the issues than is a judge in most cases. That’s because although some animal activists believe pet custody cases should be decided in the same way as child custody cases, that’s not the way the law sees it now. “The best interest of the pet” is not a consideration, and the animal is pretty much considered property.
“People are better served when they can resolve their own controversies regarding pets during a divorce,” says Clair. “It’s a crapshoot when you leave the determination to someone else. That’s true whether you find an enlightened judge or one who still looks at pets the same as silverware.”
While Clair has seen joint custody arrangements where pets are shared, he doesn’t think they work all that well. “I’ve seen little success with sharing a pet. The animal becomes almost schizophrenic.”
His favorite arrangements are those where the pets go where the children do and can end up being a stabilizing influence on all involved.
“If the children are visiting the non-custodial parent, the pet follows the children,” he says. “It works not only from the pet’s point of view, but also from the children’s. Mental-health professionals know the importance of a ‘transitional object’ that goes from one place to another and provides a source of comfort. A pet is perfect for that role.”
In a more traditional divorce, says Clair, the mother gets the house, the pets and the children, leaving the father with feelings of loss and grief. “The pain is in the departing, and missing the pet can be part of that. Again, having the pet follow the children can be ideal for the father as well.
“The needs of all parties can be met by having the pet go where the kids do.”
While judges cannot legally take the pet’s best interest into consideration, Clair feels that some of them factor it in anyway — and that changes are on the way in how the law will handle companion animals.
“You can’t open a magazine anymore without seeing stories about animals. They have pain, and they suffer. As animals become recognized as sentient beings with the right to enjoy their time on this planet, the law will continue to evolve.”
In the meantime, says Clair, it’s still best for people to consider the needs of everyone involved in the divorce, to resolve issues as fairly as possible.
“Pets represent as much of an issue as how we’re going to divide the flatware,” he says. “People need to ask: What would be the best situation for the pet?”