More than a lamp, less than a child, but what is a pet in the law's eyes?

Posted3/2/2010 12:01 AM

Your dog may think he's people, but in an Illinois custody battle he's got no more civil rights than a table lamp.

"An animal is treated like a television set or any other piece of property," says Raiford Palmer, a family law lawyer with Sullivan, Taylor & Gumina in Wheaton.


"There's no such thing as pet visitation," adds Matthew A. Kirsh, a family law attorney who lives in Lombard and works at Colky & Kirsh in Chicago.

In child custody cases, Illinois judges are mandated to rule for whatever is in "the best interest of the child." There is no custody issue with pets, only ownership.

"Nobody has the answer," says Angela Peters, a veteran Arlington Heights lawyer who chairs an animal law subcommittee that is part of the family law council under the Illinois State Bar Association. "Right now every single county, every single judge can come up with a different opinion based on whatever."

A 2006 survey by the American Academy of Matrimonial Lawyers found pet "custody" cases were on the rise, and the vast majority of those cases centered around dogs.

But not a single state has solid rules about how to handle a pet dispute during a divorce, says attorney Amy A. Breyer, the founding chair of the animal law section for the state bar. Breyer's Chicago office has specialized in animal law for the last eight years.

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There are divorce cases where the couple agrees to share a dog, with a pet spending some time in each home "if both parties are agreeable to a visitation schedule and the judge is in a good mood," Breyer says. "But by and large, the law is just not there yet."

Even if an agreement is hammered out before a marriage (let's call it a pre-pup) or during a divorce, that arrangement might not have any legal weight if a dispute arises. Kirsh says he had a case in which a man stopped paying his share of the bills for a pair of show dogs owned by his ex-wife. A judge ordered the man to make the monthly payments, not because it was in the best interest of the dogs, but because he had "agreed to maintain these two pieces of property."

Breyer points to a 2002 Pennsylvania case in which a man took his ex-wife to court, charging that she was not living up to the visitation agreement they had agreed upon for their beloved dog, Barney. The Pennsylvania Supreme Court threw out the visitation agreement and let the ex-wife keep the dog, ruling that Barney was a piece of property to be owned.

"The laws were written when animals were chattel," Peters says. "Judges understand that animals are more part of the family now. We need to find a standard that is going to allow people to come up with agreements for a judge to make a decision that can withstand the appellate court."


With child custody, support payments and more traditional problems already taxing the courts, Kirsh argues that writing new statutes about pet custody shouldn't be a priority. He says he opposes new legislation, but acknowledges that "it's an issue that's not going away."

Recent legislation proposed in Wisconsin, New Jersey and Michigan never became law, says Peters, who conducted a seminar on animal law last year. While it might make sense to the casual observer for a judge to do what's best for a cherished dog, cat or other pet, granting an animal the same rights as a child isn't going to become law in Illinois, Peters says.

"A lot of lawyers and judges are afraid it's going to be a real slippery slope," Peters says.

Breyer notes that if a lawyer can argue that a beagle has a legal right to live with the better provider, might another lawyer argue that it is in the best interest of an Angus to stay with its 4-H caretaker instead of ending up as multiple third-pounders at McDonald's?

Almost everyone agrees that a pet doesn't have the same civil rights as a human but should be regarded more highly than a table lamp. These legal committees are working to figure that gray area out.

"Right now," Peters says, "I'd have to say we are just looking for the proper language."

Finding the middle ground promises to be a dogfight.

"The thing with animal issues," Breyer says, "is it really engenders a lot of passion on both sides."