Lines from Linda: Whose Leash is it Anyway
BY LINDA AYERS TURNER KNORR
these restrictions and prevent potential nuisance claims.
FUTURE IMPACTS OF CHANGING THE LAW
Most jurisdictions still utilize the traditional property analysis in cases regarding pets. Some jurisdictions are departing from this form of analysis, typically choosing one of two primary directions: “best interest of the fam- ily” (also referred to “best for all con- cerned”) or “best interest of the pet.” While this is an enormous progression from the traditional property standard, the movement is being done judicially by jurisdiction and is a bit unorganized. Rather than changing the standard that pet custody is evaluated under by judi- cial precedent, a more lasting uniform approach may be accomplished through the enactment of legislation. Other than legislation changing the standard pets are evaluated under, another possibility is changing the status of pets to differ- entiate them from property. IMPACTS OF ENACTING LEGISLATION Creating legislation that would be a uniform standard by which all pets are subject to would likely follow one of two standards that have already been utilized in different jurisdictions: “best interest of the family,” or the “best for all concerned” standard, or the “best interest of the pet” standard. Both stan- dards have aspects that are quite useful and idealistic, though they each have their own detriments as well. The “best interest of the family” standard has been utilized in New York cases such as Raymond and Travis. The standard suggests that the court looks at the options available to the pet during a custody battle and place the pet where it would be cared for the best, provide the most comfort and suite the needs of the humans and pet best. Travis highlights questions that the parties may need to address when determining which housing situation would be best for the dog, including questions such as which party takes care of most of the pet’s needs and which home the pet currently resides in and why. Travis, 42 Misc. 3d at 460. Courts that utilize this standard typical- ly reject visitation as an option in favor of public policy of letting a divorce be the severance between the two parties so they can move on. Id. In using this standard, courts are able to recognize the complexities of the relationship of humans and their pets, while still main- taining some level of judicial efficiency.
Anastasia taking a break from law studies with her Chihuahua “Kheema”
There are several positive changes that come from using the “best for all concerned” standard in legislation. First, courts will recognize the emo- tional aspects that come with pet own- ership, not just the fair market value. Second, it allows the court to remove an animal from a home where it is being neglected, abused, or clearly not being cared for properly. Third, this allows the courts to choose from all available options which housing situation would be best for everyone. This would allow courts to be able to keep pets with their owner’s children, or for pets to be placed in housing where other pets they have relationships with are being housed. Finally, this approach does not completely eliminate the financial aspects of pet ownership, because the court will likely still inquire into who takes regular care of the pets and pays for veterinarian visits. This ensures that the pet will be placed with someone who can provide both love and care to the animal. However, creating legislation that uses the “best for all concerned” stan- dard could have detrimental effects as well. Some judges may not find it useful or prudent to spend time on a custody battle over a dog and may not take the time to ask the questions necessary to place the pet in the home that is best for all concerned. There may also be a tendency of courts to place pets with the household that has the most income as that household may be able to pro-
vide better food, veterinary care and professional assistance in caring for the dog. While these would only be factors the court considers, they may be sufficient to sway a court in favor of one home over another. Also, a lack of expert testimony in cases where the pets are unusual or have special needs may be problematic for judges. Judges are not veterinarians or sugar glider behaviorists and requesting judges make any inquiry into what would be best for a creature they know noth- ing about might be stepping outside of the court’s knowledge and require expert testimony. The “best interest of the pet” stan- dard is less often used by the courts and has received quite a bit of criti- cism. The standard asks the court to examine what would be best for the pet itself without really looking at the wants and needs of the owners beyond what they can do to care for the pet. The standard recognizes the impor- tance of a pet as a living being with the capability to suffer and aims to fulfill the pet’s interest in having a home that can be happiest in. There are two positive effects real- ized by utilizing this standard. First, it safeguards the needs of the pet before the needs of the families, which is usually something only seen in child custody issues. This ensures that the pet receives the most care and love pos- sible within the choices presented. Sec- ond, using the “best interest of the pet”
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how S ight M agazine , J uly 2018
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