Tuesday, November 30, 2010

Pet Custody Laws: Desperately Seeking Legal Precedents?

Given that an overwhelming majority of Americans consider pets as family members, should pets owned by legally married couples be subject to the same custody laws in cases of divorce?

By: Ringo Bones

Currently there’s a 50% chance that marriages in the United States will end in divorce – so it is no longer a question of “if” but a question of “when” where a more legally binding custody ruling becomes necessary in cases when a legally married couple will fight over custody of their commonly owned pets. But should a custody law for pets modeled after preexisting custody laws governing child custody be the most equitable solution for both couples?

Divorce is defined as the legal severing or suspension of marital relations under the conditions, and on the differing grounds, authorized by the various countries of the world. Divorce embraces either absolute divorce or the complete dissolution of marital relations and varying degrees of judicial separation as in limited divorce. But should a pet or pets be considered as “human children” in divorce court proceedings in order to form an equitable custody and alimony settlements? Since sharing of veterinary bills and visitation rights will probably be a primary issue, it does seem logical to grant the couples’ pet or pets a legal status similar to that of children in divorce settlements.

It is not unusual in divorce proceedings for the petitioning spouse to ask for alimony and for the custody of the children of the marriage. A decree for alimony is for purposes of full faith and credit treated as a money judgment. For it to be entitled to full faith and credit there must therefore be a jurisdiction over the person.

Courts usually require residence or domicile as a jurisdictional factor on awarding child custody. Most state courts have held that the parent being sued over custody need not be served locally with process. There is, however, a relatively recent U.S. Supreme Court case in which a divided court came to a contrary conclusion. In any event, custody is only final as an adjudication of facts as of the time of the decree. Upon a showing of changed conditions which affect the welfare of the children, the court which made the original award may change its order. Since a court need give a foreign judgment or decree no more effect than it has where originally granted it may reward custody. Most courts are, however, of the opinion that they should only change the status of the children where to do so is patently in his or her best interest.

It is customary for alimony, or allowance for support for the wife and children of the marriage, to be awarded to the wife who succeeds in an action for either absolute or limited divorce. In some U.S. states, alimony is allowed in an action for annulment of marriage, despite the theoretical inconsistency involved, although in Texas, allowance for support of the wife, as distinguished from division of the spouse’s property is not granted upon absolute divorce and in Pennsylvania such allowance in case of absolute divorce is awarded only to an insane wife.

Temporary alimony, pending the outcome of a suit for divorce or separation, is ordinarily granted to the wife. Considerations governing the amount of the alimony awarded are the earnings and means of the husband, and to a lesser extent the earnings and means of the wife. Only rarely is the wife denied the custody of the children, so in the issue of pet custody, this legal precedent might be equitable to both parties. But when it comes to shoehorning preexisting legal precedents to apply to pet custody and / or alimony, some could see it as a waste of taxpayers’ money in establishing legal precedents for equitable settlement in pet custody litigation in a courtroom setting – never mind taking the case to the U.S. Supreme Court. Establishing legally binding and equitable pet custody laws during divorce must start somewhere, right?