Split custody of dog recognizes changing role of family pets

In what lawyers believe was a first in Maryland, a judge recently ordered a divorcing Calvert County couple to split custody of their dog, a recognition, experts say, that pets stand apart from other property.

Once rare, post-breakup disputes over who keeps the pet have grown more common in the past two decades. At the same time, some couples, many choosing not to have children, are lavishing attention on their pets and are willing to spend thousands of dollars in legal fees fighting for custody of Rover.

But what the ruling by retired Judge Graydon S. McKee III spells for the direction of animal law in Maryland is unclear. The decision cannot be cited as legal precedent because it did not come from a state appeals court.

"Grouping pets together with other property like the furniture doesn't achieve what people want. They want to preserve a relationship with the pet," said Susan J. Hankin, a University of Maryland law professor whose specialties include animal law.

But, "I think it could well be used persuasively by other judges in other jurisdictions," she said. "My sense is that judges are starting to recognize from their own experiences that pets are different from other property."

Some jurisdictions have decided that the pet owners' emotional attachment should be weighed when making animal custody decisions. In a publicized New Jersey ruling last year, an appellate court overturned a judge's decision to grant one member of a formerly engaged couple ownership of a pug, with an order to pay the pooch's purchase price of $1,500 to the other. In rehearing the case, the judge awarded them shared custody, with Dexter shuttling between the two homes every five weeks, according to news accounts.

However, despite an old movie portrayal, pets don't yet get to choose their post-divorce home.

In the 1937 comedy, "The Awful Truth," in which Cary Grant and Irene Dunne's divorce battle includes a fight over a dog, the judge brings the terrier to court to choose the preferred "parent." Dunne wins — by cheating — and Grant gets visitation.

In real life, the California-based Animal Legal Defense Fund submits friend-of-the-court briefs in divorces and similar splits, but not to take sides.

"We ask the court to consider that animals are not toasters. The toaster does not care which house it goes to, but animals do. Who takes the dog to the veterinarian, who walks, feeds the dog — the animal might prefer to be with that person," said Joyce Tischler, the organization's general. "We ask the judge to consider the animal's interests. I'm not saying that's an easy thing to do. Broken homes are difficult for everybody."

The organization is developing a model law with 10 factors for judges to consider in determining post-breakup arrangements for pets, according to Stephan Otto, ALDF's legislative affairs director. Among them are the ability of each person to meet the animal's basic needs, who has been the primary caregiver, and the emotional ties between the people and the pets — much the same points that each side expressed in the Calvert County dispute.

Such considerations, essentially looking at the pet's and owners' interests, nudge what is still a property decision closer to a child custody decision.

In Massachusetts, for example, an animal specialist can be asked to evaluate the pet's situation for the court and recommend which owner should get the pet, though a joint arrangement is not out of the question, said Jonathan Stone Rankin, a Framingham lawyer specializing in animal law.

"We have this dichotomy in the law. On the one hand, every state says pets are property. But the law recognizes animal cruelty. It allows for trusts," he said.

In the Calvert County case, both Craig and Gayle Myers wanted Lucky, a suspected Lhasa apso-Shih Tzu mix that Craig Myers found living under a construction trailer in 2008 and brought to the couple's Dunkirk home. The Meyers split a year later. Each insisted on keeping Lucky.

"Lucky is a special dog, her personality … and she is a loving dog. I always felt Lucky was mine," Craig Myers said.

"Lucky bonded to me. I'm her primary caregiver. I'm her human," Gayle Myers wrote in an e-mail.

McKee heard testimony in June, which included details like who takes the dog to the vet and who has more time to take care of the dog, said Mark W. Carmean, Craig Myers' lawyer. Lucky was not in court for the proceedings.

"People think of dogs as having an emotional attachment to their owners and owners to their dogs," said James S. Maxwell, Gayle Myers' lawyer, who is considering suggesting a change in state law to reflect that notion.

State Senate President Thomas V. "Mike" Miller said last week that he doubts the law needs a change, saying he prefers to leave it up to the judge to decide how to best handle each case.

Some family lawyers fear that looking at a pet's best interest in every contested pet "custody" case would be problematic.

Dorothy R. Fait, a Rockville family law practitioner who had a divorce case with a similar dispute a decade ago (the couple agreed to shared dog time) said the question is "the law of unintended consequences."

"What happens if somebody doesn't obey the order and return the dog at the end of six months? Are you going to put somebody in jail if they don't turn over the dog?" Fait asked. "When you really think about it, do you really want to take it to next level?"