November 20, 2017
Politics & Opinion
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Custody Of Pets In Divorce Cases

Delegate Michael Malone
Delegate Michael Malone's picture
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March 8, 2017

According to the American Pet Products Association, 65 percent of American households own at least one pet. Mine has often been one of those households, from the brindled boxer I as a child let sleep on the couch, to the hamsters, guinea pigs and fish of my older son’s childhood, to the Shih Tzu we adopted, who passed last year at the ripe old age of 16. It doesn’t take a survey to know how important those pets can be to their owners – from “Lassie” to “Must Love Dogs” to the proliferation of pet food commercials and pet photos on Facebook, the deep emotional attachment between people and their companion animals, and the importance of animal welfare to Americans at large, is obvious and well known.

Recognizing this, I have introduced House Bill 749 addressing custody of pets in divorce cases. As a local family law lawyer and mediator for more than 20 years, I can tell you that divorcing spouses are often most concerned about financial survival and about time with their children, and there is ample law addressing those. A family pet, however, no matter how loved, is not a child. Under colonial law that Maryland imported from England, pets are personal property. In a divorce in Maryland, unless the spouses agree otherwise, personal property a couple acquired during their marriage is, with certain exceptions, divided by title — by who owned it. Absent agreement, jointly titled property is sold, and any unfairness in the value of each person’s portion of property is adjusted with an award of money. So, as Maryland law stands now, the spouse who has title to a pet (which can be determined by something as capricious as who signed the receipt or who first took it to the vet or who has it at the time of divorce) keeps the pet, unless the spouses agree otherwise. If both spouses own the pet, it could be sold and the proceeds divided. A 10-year-old dog likely has no value to anyone other than its family, but even when it does, the nicer spouse often cedes custody of it to the other spouse to avoid sale to an unknown party. In fairness, some judges, recognizing the importance of a pet to a family and of the pet’s general wellbeing, will consider the welfare of the animal and the animal’s role in the family in determining its disposition, but there is nothing requiring them to do so, and doing so may actually contravene existing law.

Some spouses will dispute who owns or gets the pet as a negotiation strategy or simply to upset the other side, finding it useful as a bargaining chip or an emotional blow. This can be especially hard on children, who often look to family pets for unconditional love, companionship and comfort during such a trying time. Richard Trunnell, a family law lawyer in Crofton, submitted testimony in favor of the bill on behalf of the Family and Juvenile Section Council of the Maryland State Bar Association. In his testimony, Mr. Trunnell described two recent cases in his practice where a parent kept a pet away from the children due to anger that the children chose to live with the other parent. He notes “the children suffered emotionally and a parent-child relationship was damaged because there was no mechanism in the court system to equitably award the pet to the appropriate party.”

Pets are not treated as personal property in other areas of the law or life. There is no law prohibiting abuse of a couch, but there is of a dog. In most states, you can’t create a trust for the maintenance of your Gran Torino, but you can for your prize Persian. No matter how bad a cook you are, there is no Society for the Prevention of Cruelty to Kitchen Stoves, and no appliance store assesses your suitability to own a flat-screen TV before purchase. Pets are the only personal property my tween daughter still cuddles, or that I’ve gotten up to let out at 4:00am, or that I’ve held while dying. Pets deserve our protection, and the children of divorce deserve their love.

If you have any questions about this legislation or any other proposed or pending legislation, contact me at michael.malone@house.state.md.us.


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