Animal Companions as Property
As much as animal lovers may view, and may wish that others view, their animal companions as members of their families, the fact remains that pets continue to be characterized under the law primarily as property. As such, during a divorce, a court may look to award a beloved pet in the same manner as the television or grandma’s china, or in a claim against a third party for critically injuring the animal companion, a court may award an animal guardian only the assessed fair value of their companion, which may be minimal and in no way compensate for the animal guardian’s loss of companionship.
Although there has been a shift in some courts to recharacterize pets as something other than property (see, e.g., Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d (182 N.Y.City.Civ.Ct., 1979), holding that “a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property”), change has been slow and inconsistent among jurisdictions. In contrast to the Corso court, other courts have declined to look beyond the traditional classification of animal companions as property, arguing that doing so effectively would require the courts to undertake the same level of responsibility for animal companions as they do for people, thereby increasing the burden on already overwhelmed courts (see Bennett v. Bennett, 655 So.2d 109 (Fla.App. 1 Dist., 1995)). Additionally, even those courts agreeing with a different characterization have struggled with its application. For example, recently a New York court applying Corso in an animal custody matter determined to utilize a “best for all concerned” standard, which would allow each animal guardian in a pet custody matter to prove why the guardian would benefit from having the pet in the guardian’s life and why the pet “has a better chance of living, prospering, loving and being loved in the care of one [guardian] as opposed to the other,” rather than a traditional property distribution analysis (Travis v. Murray, 42 Misc.3d 447 (Sup. Ct., N.Y. County, 2013). However, despite using such a standard, the court in Travis determined that the animal companion should be awarded solely to one guardian, noting that “[a]lthough regrettably a harsh and seemingly unfeeling outcome … our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings.”
In light of the philosophical change from a traditional property analysis in some courts to a more “best for all concerned” approach, this may leave animal guardians uncertain as to how their beloved companion will be treated by a court. In addition, with respect to companion custody matters, it still remains a zero sum game. The losing guardian, unless an alternative agreement is reached, is stripped of any right to joint custody or visitation. A potential solution, as noted in Travis, is for the parties to arrive at some form of agreement outside of the courtroom. One way for disputing parties to reach agreement may be to engage in mediation. Parties may agree to mediation without court involvement or a court may recommend or order mediation.
Mediation vs. Litigation
Mediation is a voluntary process in which a neutral third-party facilitates communication between the parties to determine if a mutually agreeable solution can be reached. The mediator may or may not be an attorney, but, regardless, does not counsel or give advice to the parties. Unlike litigation, which is adversarial in nature and results in a win/lose outcome, mediation allows the parties to arrive at a shared middle ground that is acceptable to both parties. In animal law matters, including pet custody, landlord/tenant issues, neighbor disputes and animal injury matters, mediation may be particularly useful to arrive at creative solutions that litigation does not permit.
Mediation may not be appropriate or useful in all animal law matters, as mediation depends on the cooperation of the parties. If the parties are focused solely on determining a “winner” as opposed to finding a solution that the parties find acceptable, mediation will fail. Likewise, mediation depends on having appropriate parties participate in the mediation–if a party sends a relative or some other third party to mediation in his or place, no agreement may be reached.
If, on the other hand, all involved parties are willing to mediate, the process may offer many benefits. First, litigation is typically an expensive and time consuming process. Beyond court fees, costs and time constraints, parties rarely communicate directly, which decreases the parties’ opportunity for quickly and satisfactorily resolving the issue. In contrast, mediation usually involves splitting the cost of a mediator’s hourly rate, which can vary depending on the jurisdiction, between the parties. Depending on the parties’ preferences, attorneys may or may not be involved in the mediation process. Even if attorneys are involved in the mediation, the parties are the primary communicators, which allows for more meaningful, direct, and honest communication. Also, because mediation does not involve a court docket, it can occur based on the parties’ schedules and the duration depends on the parties and may be as little as two hours.
Another benefit of mediation is that the parties control the outcome. Unlike litigation where a judge determines the outcome, in mediation, both parties determine if a resolution is to be reached and the content of any such resolution. A party cannot unilaterally resolve a conflict in mediation. Additionally, where, as in animal custody matters, the law and application thereof varies from court to court, mediation provides predictability.
Third, and potentially the most beneficial, mediation allows for more creative solutions. Whereas courts are constrained by rules and regulations, the parties in mediation are free to resolve their dispute in any way the parties agree within their power. In an animal custody dispute, for example, this would allow the parties to potentially devise a joint custody/visitation agreement. Through communication, the parties may learn that their schedules allow for shared visitation that benefits both parties. Whereas, during litigation, the parties are focused on attaining sole possession, as dictated by current law and practice, during mediation the parties may instead focus on what is in the best interests of their beloved companion, something the courts have declined to do.
Finally, although courts may decline to enforce a joint custody or visitation agreement litigated in family court, a court may enforce a provision in a mediated agreement against a party that violates such agreement. For example, if parties agree in mediation that any further disputes resulting from the mediated agreement will be submitted to a neutral arbitrator, the courts may enforce such provision.
Until the laws catches up to the expectations and emotional needs of animal guardians, mediation, rather than litigation, may prove the more prudent option to resolving issues. With respect to animal custody matters where both animal guardians have a vested interest in continuing their relationship with their animal companion, mediation may allow both parties continued association with their animal companion, something that is unlikely to happen if the parties try to resolve the custody matter in court. As stated by one court addressing an animal companion matter, “[l]ove is not a commodity that can be bought and sold—or decreed. It should be shared and not argued about.” Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App., 1981).
Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.