Who Gets Custody Of The Dog?

On behalf of The Marks Law Firm, L.L.C. posted in Custody of Pets on Monday, April 1, 2013

From Wilmington, Delaware comes a story of heartbreak or absurdity, depending upon your perspective. A couple had lived together for less than two years did not marry or have children, but they did purchase and begin raising a miniature dachshund named Dennis Hopper. As with many breakups, the couple immediately began fighting over custody of their beloved child dog. The litigation began in the Justice of the Peace Court, followed by the Court of Common Pleas and most recently the Delaware Superior Court.

The legal arguments from both sides are quite simple: “mom” believes that “dad” gave Dennis to her as a gift, and “dad” maintains that he purchased the dog for himself and, because “mom” lived with him, she enjoyed the benefits of Dennis collaterally only. Each “parent” sought sole custody, though they acknowledge to trying a “fluid” shared custody agreement where Dennis would go from house to house a few days at a time. Eventually, “mom” felt too uncomfortable returning to where she lived with “dad,” and also had concerns about his behavior as a “parent.” After nine months of not seeing Dennis, “dad” filed suit.

The trial court believed the evidence supported the theory advanced by “dad,” that Dennis had been a household purchase. But the appellate court disagreed, finding the evidence supported “mom” and her theory that Dennis had been a gift (and indeed are not all dogs gifts?). The appellate court ruled as follows:

The trial court erred as a matter of law when it expanded “in contemplation of marriage” to “in contemplation of the relationship,” and held that Fossett’s gift of Dennis to Conte had “symbolic significance.” The Court appreciates the emotional strain this case presents and that it has not been an “easy ride.” That said, under Delaware law, Dennis has the same legal status as a piece of furniture. It is “nothing personal,” but Dennis has no symbolic significance.

Some may find the tone of the opinion harsh and unsympathetic; some may see it as a valiant attempt at humor (with a dash of sarcasm); some may wonder why two people have spent more time in court over custody of the dog than they spent actually living together. Regardless, the ruling as a matter of law follows the universal belief that dogs, no matter how much we love them or how human (or more than human) they appear, remain chattel and so property law, not family law, governs these matters.

Could this case become one of the tail wagging the dog? It seems that perhaps a movement could be at hand (or at paw) to give greater recognition to the custodial interests of proud dog parents after a breakup. We know many clients who have felt that the only true love they felt in their relationship or marriage came from the family dog, not their partner, so why should the law leave them in the doghouse, so to speak?

Ironically, had the couple been married rather than merely cohabitants, the law could have been of a bit more use. The dog would have been considered marital property, and the parties would have had to negotiate distribution of Dennis, which might have forced the parties to agree to shared custody.

Pet custody is not as absurd as this case would lead one to believe. People have serious attachments to their pets, especially when their human relationships are in total chaos. In cases of divorce, the law does enable a skilled lawyer to structure a particular arrangement as to the custody of the pet, or even use a prenuptial or postnutptial agreement to assure a smooth path for the one member of the family who loves unconditionally.

If you have questions about the legal status of your pet in your marriage, contact us – we can help.