By Deborah Rook
This is my dog Charlie. Like many pet owners in England and Wales I see my dog as a member of my family. He shares the ups and downs of my family life and is always there for me. But what many people don’t realise is that Charlie, like all pets, is a legal ‘thing’. He falls into the same category as my sofa. The law distinguishes between legal persons and legal things and Charlie is a legal thing and is therefore owned as personal property. If my husband and I divorce and both want to keep Charlie, our dispute over where Charlie will live would come within the financial provision proceedings in the family courts. What approach will the family courts take to resolve this dispute? It is likely that the courts will adopt a property law test and give Charlie to the person who has a better claim to the property title. This can be evidenced by whose name appears on the adoption certificate from the local dogs home or who pays the food and veterinary bills. Applying a property test could mean that if my husband had a better property claim, Charlie would live with him even if Charlie is at risk of being mistreated or neglected.
Charlie the dog. Photo courtesy of Deborah Rook
Property versus welfare
Case law from the United States shows that two distinct tests have emerged to resolving pet custody disputes: firstly, the application of pure property law principles as discussed above; and secondly, the application of a ‘best interests of the animal’ test which has similarities to the ‘best interests of the child’ test used in many countries to determine the residency of children in disputes between parents. On the whole, the courts in the United States have used the property law test and rejected the ‘best interest of the animal’ test. However, in a growing number of cases the courts have been reluctant to rely solely on property law principles. For example, there are cases where one party is given ownership of the dog, having a better claim to title, but the other is awarded visitation rights to allow them to visit. There is no other type of property for which an award of visitation rights has been given. In another case the dog was given to the husband even though the wife had a better claim to title on the basis that the dog was at risk of severe injury from other dogs living at the wife’s new home.
Pets as sentient and living property
What the US cases show is that there is a willingness on the part of the courts to recognise the unique nature of this property as living and sentient. A sentient being has the ability to experience pleasure and pain. I use the terminology ‘pet custody disputes’ as opposed to ‘pet ownership disputes’ because it better acknowledges the nature of pets as living and sentient property. There are important consequences that flow from this recognition. Firstly, as a sentient being this type of property has ‘interests’, for example, the interest in not being treated cruelly. In child law, the interest in avoiding physical injury is so fundamental that in any question concerning the residency of a child this interest will prevail and a child will never be knowingly placed with a parent that poses a danger to the child. A pet is capable of suffering pain and has a similar relationship of dependence and vulnerability with its owners to that which a child has with its parents. Society has deemed the interest a pet has in avoiding unnecessary suffering as so important as to be worthy of legislation to criminalise the act of cruelty. There is a strong case for arguing that this interest in avoiding physical harm should be taken into account when deciding the residency of a family pet and should take precedence, where appropriate, over the right of an owner to possession of their property. This would be a small, but significant, step to recognising the status of pets at law: property but a unique type of property that requires special treatment. Secondly, strong emotional bonds can develop between the property and its owner. It is the irreplaceability of this special relationship that means that the dispute can’t be resolved by simply buying another pet of the same breed and type. This special relationship should be a relevant consideration in resolving the future residency of the pet and in some cases may prevail over pure property law considerations.
I argue that the unique nature of this property — the fact that it has an interest in not suffering pain and the fact that it has an ability to form special relationships — requires the adoption of a test unique to pet custody disputes: one that fits within the existing property category but nevertheless recognises the special nature of this living and sentient property and consequently permits consideration of factors that do not normally apply to other types of property in family law disputes.
Deborah Rook is a Principal lecturer in Law at the School of Law, Northumbria University and specialises in animal law. She is the author of ‘Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law’ (available to read for free for a limited time) in the International Journal of Law, Policy and the Family.
The subject matter of the International Journal of Law, Policy and the Family comprises the following: analyses of the law relating to the family which carry an interest beyond the jurisdiction dealt with, or which are of a comparative nature; theoretical analyses of family law; sociological literature concerning the family and legal policy; social policy literature of special interest to law and the family; and literature in related disciplines (medicine, psychology, demography) of special relevance to family law and research findings in the above areas.
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By Simone Frizell Reiter
According to Statistics Norway, around 10,000 children under the age of 18 in Norway experience divorce every year. These numbers do not take into account non-married couples that split up. Therefore, in reality far more children experience parental separation.
Status of knowledge
Focus has been on the adversity of parental divorce, emphasising the support and safety an intact family gives. The child may experience conflict, neglect or parental alienation, and insecurity about who belongs to the family. Not only the separation itself but also the period preceding and following the divorce may disturb the child’s well-being. Several studies show that parental conflict, that may be harmful to the child, is perpetuated even after the divorce. However, other studies show that when the parents are able to reduce the level of conflict after the divorce, the divorce is not exclusively negative if the child is moved from a family situation with conflicts to a more harmonious one. Society’s attitude toward divorce has changed as divorce has become more common. Prejudice and stigma are less pronounced. A natural assumption is therefore that mental problems related to divorce are also reduced. However, more recent studies conclude that adults, who experienced divorce in childhood, have more mental health problems than adults from intact families.
Divorce and reduced parental contact are closely linked. Children with loss of parental contact after divorce report more mental health complaints compared to children with preserved contact. Lack of attention, support, and economic insecurity may explain some of the negative effects of a parent’s absence. However, even when provided with at step-parent after divorce, these children report a lower level of well-being than children with preserved parental contact. Biological parents therefore seem to be of particular importance. Regular and frequent contact with both parents after divorce may also reduce the potential harmful effects of parental absence as seen in sole-custody households. Parental support is an important, independent risk factor to children’s sense of achievement and well-being. It is shown that as children’s relationship with their fathers weakens after divorce, they also lose contact with paternal grandparents and stepfamily.
Studies show that when divorce is followed by strong conflict, children may be used as a weapon between the parents. In such conflicts contact with one of the parents may be limited or brought to an end. The child is forced to ally with one of the parents, and suffers from the psychological stress this causes.
What is the concern?
Family law in Western societies generally aims at preserving dual parental contact for the child after divorce. This is also the aim of the Norwegian legislation. The Norwegian Child Act states that the parents may come to an agreement on where the child should primarily reside. However, if the parents cannot agree on this, the court has to decide which one of the parents the child should stay with. In practical life this has, in most cases, been the mother, while the father has been reduced to a weekend parent. Due to this, the experience in Norway is that when it comes to loss of parental contact, children of divorce primarily lose contact with the father. This effect is in some cases strengthened by the primary caregiver intentionally sabotaging the other parent’s visitation rights. To prevent this, the Norwegian legislation has sanctions, but these are very rarely used. A suggestion has been to introduce shared residence as a preferred solution after parental divorce, and that parents who sabotage this agreement may get restrictions on their contact with the child.
Most parents choose to take an active role in their child’s upbringing, and only a small group is absent, either by choice or circumstances. Therefore, social benefit systems have built in mechanisms to compensate the lacking of the absent parent by high financial contributions to sole providers left alone in charge. The downside of these benefits is that one of the parents can gain financially on monopolising the contact with the child and in some cases the sole provider actively sabotages or reduces the other parent’s contact, only to gain financially. This mechanism is strengthened by the Norwegian child maintenance system, where the level of economic support is linked to the amount of time spent with the child. Parents who share the custody in equal parts do not pay any child maintenance to each other. The combination of the systems has turned many fathers in to “child maintenance machines” because the mother would lose so much financially, sharing the custody of the child with the father. The benefits therefore undermine the aim to gain shared custody, and deprive the father of the possibility to have a close relationship with his child.
The concept of “parental alienation syndrome” is used to describe the condition where the child is alienated against one of the parents. If the government wants the children’s voice to be heard in custody conflicts, they must take into account that the child is already involved in a process of demonization and slander of one of the parents. From the literature, we know the term folie à deux. The government should be careful not to act in a game that can be characterized as folie à troi (madness shared by three).
In practice, it is difficult to have an equal amount of contact with both parents unless the child lives in two places equally. What is important to consider is whether advantages of maintaining a close relationship with both parents outweigh the disadvantages of having to change residence, for instance every week or every second week. Equally shared legal custody is not the same as having the child living in two residences fifty-fifty.
The experience is that the Child Act’s intention of parental agreement on a solution of custody between equal parties does not work. This is because the court, when presented the case, is legally bound to choose a single residence and almost exclusively chooses the mother.
On the basis of this knowledge it is important that the government puts effort in protecting the child’s right to have contact with both parents. This work must be as unprejudiced as possible. It is not acceptable that we continue with a practice in which the legislation allows the systematic favoring of one part in conflicted divorces.
Simone Frizell Reiter is a PhD candidate in the Department of Clinical Medicine at the University of Bergen, Norway, and the author of the paper ‘Impact of divorce and loss of parental contact on health complaints among adolescents’, which appears in The Journal of Public Health.
The Journal of Public Health aims to promote the highest standards of public health practice internationally through the timely communication of current, best scientific evidence.
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Image credit: Divorce and child custody. By Brian Jackson, iStockphoto.
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