Divorce and Animal Custody by Debra Vey Voda-Hamilton, Esq.
How can you, as a conflict professional, nip conflict in the bud-before it comes back and nips you and your client in the butt when handling divorces involving animals and animal custody? Courts do not adequately address the feelings and emotions surrounding an animal that has played a central role in a married couple’s life. This is especially true when that animal is their child.
When your clients come to you and ask about sole or shared custody of their animal how do you answer their query? They are likely contemplating that a conflict will arise in the divorce discussion over who gets the animal. You can’t cut the pet in half. Courts rarely want to get involved with custody issues surrounding pets. The law cannot respond to the feelings we have for and receive from our animal that creates the basis for a conflict needing resolution. As a practitioner, sit down with your client in a collaborative process or clients in a mediation and spend time listening to them about how they see the pet in their life before, now and in the future. What is it they want/need from the continuation of their relationship with the pet?
Here is an example of what a recent litigation attorney told their client in divorce about their present and future life with Roscoe the dog. The attorney said that since their client paid at least 50% of the dog’s expenses they deserved to spend 50% of their time with the dog. They encouraged their client to fight for 50% of the time. Their client spent a great deal of time and money in litigation. Interestingly, the couple asked to be referred to a mediator before the judge decided who gained full possession of the dog. Each attorney wished the mediator good luck because these clients were entrenched and immovable on 50% of the time with their dog.
After about four hours of discussion in mediation about how each party viewed the dog in their life, the parties began, independently, to reality test what 50% of the time with the dog would really look like. All the while the mediator simply listened and supported the speaker, their view of the facts and their love of the dog. In reflecting back what each of the clients were saying, the mediator had the opportunity to facilitate listening for understanding on both sides of the stories they had in their heads. It became clear to everyone in the mediation that there was a solution right in front of them, they simply needed to find their way to it on their own.
What were not explored in litigation were the individual parties’ stories involving the dog in their life. One of the parties was a schoolteacher and really only wanted the dog during vacations. The other party stayed at home and worked from the home. They loved having the dog around all day but also really wanted to travel. By the end of the mediation, they realized that, in fact, if one of the parties took the dog during school and summer vacations, the other person could care for the dog during school and travel too, without having to pay for kenneling fees. It worked out perfectly. Mediation allowed them to do something no one had ever done with them before; explore what it was they wanted their relationship to be with this animal.
In mediation and collaborative practice, we can create the opportunity for couples to have that discussion about what their future with the dog looks like. It works with cats, birds and horses too! If you step away and don’t add the conflict over an animal to the litigation, you can solve for the best outcome for all, especially the animal.
Unfortunately your pet does not hate your ex. Maintaining an open line of communication truly puts the best interests of your pet into the equation. Be brave, engage in proactive animal conflict resolution. Here is a wish for everyone going through a divorce with a pet: that you have the ability to recognize what it is you want in your relationship with the animal first, discuss what that is second, and then finding a resolution where both of parties can enjoy the life and love of their four-legged animal comes naturally.