( please read carefully and no plagirasm ) i attached five articles you should summary it (three to five sentences) of the each work. pleas each article summary in different word document, so five word document.thank you
animal_2.pdf
animal_3.pdf
animal_4.pdf
animal_5.pdf
animal.pdf
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Pets in Divorce: Family Conflict over Animal Custody
CHARLES P. KINDREGAN, JR.
T
he growth of national organizations devoted
to the promotion of legal protections of animal rights and interests is an example of
increased concerns over the welfare of animals.1
Indeed, in just a few years, “animal law” has
become a recognized field of legal practice which,
with increasing frequency, is being taught in
American law schools2 and is the subject of legal
treatises.3 Debates and conflict have existed for
centuries, and continue among those who have a
benevolent attitude and affection for animals versus those who view animals simply as property to
be used and controlled by humans as they see fit
as long as the actions do not intrude on the rights
of other humans.4 Much of the debate and conflict over animals in human society is premised on
radically different views of the legal status of animals. There are laws that prevent cruelty to animals which seem to have universal acceptance in
society5 but, beyond this, opinions on the legal constraints on how humans should treat animals they
own or control are extraordinarily diverse.
The status of animals arises in many different
legal contexts. Debates have raged over the question of whether animals are entitled to “humane”
treatment even though they are not human. Some
of the questions being asked in this debate include
the following: Is it ethical for humans to raise and
kill animals for food? Should humans be prohibited from killing animals for their skins or furs for
humans to wear? Does it matter if such clothes
are for warmth or just for stylish appearance? Can
a judge issue an order for protection of animals
when there is evidence that the animals are not
being properly cared for, even if they are not being
abused within the meaning of the criminal statutes? Who, if anyone, owns a dog or cat that roams
a neighborhood and is fed by a number of people?
In a divorce case, does a judge have jurisdiction to
require a legal custodian to allow another person
Charles P. Kindregan, Jr., is Distinguished Professor
of Family Law at Suffolk University Law School in Boston.
He is co-author, with the late Monroe Inker and Patricia
Kindregan, of Family Law and Practice 3rd Edition (2003),
a four-volume set of the Massachusetts Practice Series
published by Thomson-West (with current supplements);
Kindregan and Inker’s Massachusetts Domestic Relations
Rules and Statutes Annotated with Relevant Federal Statutes Annotated, which is published annually by ThomsonWest (2009); and Alabama Family Law with J. Crittenden,
2 volumes, Thomson-West (2008). He is the co-author,
with Maureen McBrien, of Assisted Reproductive Technology: A Lawyer’s Guide to the Emerging Law and Science,
published by the American Bar Association (2006) and a
separate supplement (2009). He served as the Chair of the
American Bar Association Family Law Section Committee on Assisted Reproduction and Genetics (2004-2007)
which drafted The Model Act on Assisted Reproductive
Technology that was approved by the A.B.A. House of Delegates in February 2008 and recommended for adoption
by the states. He is the founder of Suffolk University Law
School’s Advanced Legal Studies program, which has sponsored legal programs throughout the United States, and in
England, Ireland, and Cuba. In 1990, he was awarded the
Freedman Award for Outstanding Contributions to Family
Law by the Massachusetts Chapter of the American Academy of Matrimonial Lawyers. He also served as Associate
Dean for Academic Affairs at the Law School (1990-94).
He compiled a study of the California Probate Code for
the American Law Institute, chaired a number of committees for the American Bar Association, and served as the
reporter for Bench/Bar conferences for the Massachusetts
Probate and Family Court. He served as a member of the
American Bar Association Family Law Section Publications Board, the Massachusetts Bar Association Family
Law Council, the Massachusetts Bar Association’s PostGoodridge Task Force, the Child Support Task Force and the
Board of Directors of the Massachusetts Probate and Family
Inn of Court, and the National Family Law Roundtable.
227
228 AMERICAN JOURNAL OF FAMILY LAW
“visitation” with the animal? These are just a few
of the many questions asked today as part of the
debate about use and control of animals.
THE LEGAL STATUS OF ANIMALS
In theory, the law should be consistent in regard
to determining the status of animals. But such consistency is impossible because animals are kept by
humans for various purposes. The Federal Animal Welfare Act includes specific standards for the
control and transportation of livestock and pets, as
well as animals used in exhibitions,6 but provides
more rigorous standards on the use of animals in
research.7 State laws prohibiting cruelty to animals
apply to domesticated, exhibition, and research
animals, but exempt the treatment of wild animals in hunting, fishing, and some forms of trapping.8 All of this suggests that there is no universal
agreement on the legal status of animals, and these
inconsistencies have carried over into the increasing debate about how animals should be treated in
divorce cases as to their custody, care, support, and
visitation.
The focus of this article is on domesticated pets.
By definition, this excludes wild animals or animals
that primarily are used for husbandry, public entertainment, or as work animals. This distinction may
be confusing in a given case where, for example, a
cow that is used for milking is also considered a pet
by some family members. To avoid such confusion,
we will focus on animals that are exclusively maintained as “pets,” i.e., dogs, cats, birds, goldfish, etc.,
that are basically companion-animals to human
beings.
ARE PETS MERELY PROPERTY?
In considering the status of pets, some fundamental issues must be resolved. Are domesticated pets
merely another form of personal property, are they
a form of life whose best interest is to be considered
for itself, or should pets be viewed as companions of
human beings? The answer to the question has been
asked in divorce cases, albeit without any uniform
answer. Do pets have intrinsic qualities that entitle
them to legal rights or do they have legal interests
only in relation to their human owners?
Throughout the history of American law, animals have been considered as personal property if
they were “owned” by a human being. However, in
some states animals kept purely as pets — such as
cats and dogs, were considered to have no absolute
and valuable property status in which a human
being could have an interest.9 That no longer
appears to still be the law anywhere, and the status of pets as property appears to have widespread
application. However, that status is not universal.
Generations of law students have puzzled over
the status of the dead fox in the famous case of Pierson v. Post,10 but the underlying assumption in the
opinions of the judges in that case is that this was a
property dispute and nothing more. Almost a century after that famous decision, the United States
Supreme Court, in Sentell v. New Orleans & C. R.
Co, distinguished between animals ferae natural in
which there is no property right and “domestic animals in which the right of property is perfect and
complete.”11 Yet lawyers are increasingly raising
questions about the best interests of pets and their
right to care and protection in divorce cases, which
suggests a need to go beyond the property classification used in the past.
Do pets have legal interests in relation to their
owners?
The division of opinion about the status of
domesticated animals has many legal ramifications.
If a pet is merely property, then the owner can
transfer it by gift, sale, or will, even over the objection of another person who has developed a personal affection for the animal. But if a pet is viewed
as a human companion, then does the animal not
have a sufficient inherent value such that it has
legal rights sufficient to be named as the beneficiary
of a trust fund?12 If a pet is merely property, then
should a wrongdoer who negligently or intentionally hurts or kills the animal be liable for damages
be measured only by the economic value of the lost
property?13 But if a pet is viewed as the companion
of its human owner, should damages be measured
by the emotional loss to the human?14
In divorce cases, the context is different but the
legal status of the pet will enter into the judicial calculation that underlies the ultimate judgment. Where
spouses dispute over custody of a pet, will it matter
that one “owns” the animal while the other merely
has an “emotional attachment”? How does the best
interest of the animal itself play into this calculation?
THE FAMILY PET AND DIVORCE
As family lawyers are learning in ever more contentious cases, the status of pets must be considered
PETS IN DIVORCE: FAMILY CONFLICT OVER ANIMAL CUSTODY
in the context of conflicts between divorcing spouses
over custody, visitation, and care of animals. The
law of every state provides for assignment of property interests in divorce cases.15 Historically, animals
have been considered as a species of property and,
therefore, it was natural for courts to initially consider the statutory factors governing property division in divorce in judgments ordering disposal of
pets when the divorcing parties could not agree.16
But does treating the assignment of an animal under
community property or equitable division law
really deal with the underlying concerns evidenced
by modern thinking about pets? Certainly there “is
widespread dissatisfaction with court’s application
of [a] strict property model in resolving pet custody issues.”17 In recent years, different views have
emerged on this issue. Some judges have argued
that a new area of jurisprudential thinking about
animals is appropriate. Such judicial thinking may
recognize that animals have rights and should be
classified not simply as “property,” but as “living
property,”18 or even “human companions.”19 Some
commentators have gone even further, suggesting
that in considering pets in divorce, courts should
apply a test analogous to the “best interests of the
child” standard used to address custody and visitation disputes involving children.20
THE DIVORCE DECISIONS: PROPERTY V.
HUMAN COMPANIONS
The traditional model for resolving issues of pet
ownership between divorcing spouses is to assign
ownership based on a state’s property division law.
Every state has a statute that provides for assignment of property interests between the divorcing
spouses when they cannot agree between themselves.21 In addressing such issues on the basis of
property alone, the court will examine factors relevant to property—concepts such as premarital
ownership; marital property versus separate property; or contribution to the acquisition, improvement or appreciation of the value of the property,
as well as factors relevant to the divorce itself such
as length of the marriage; needs and ages of the
parties; estates of the parties; liabilities and debts;
and the tax consequences of a particular proposed
order. In some jurisdictions, the needs of minor
children are considered in making a division of
property between the parents. This, of course, does
not per se take into account of the emotional needs
and feelings of the parties about pets on a strict
property analysis.
229
The emotional needs of divorcing persons are
such that the comfort afforded by a pet may be a
needed part of the healing process. Treating the
companion pet as merely another form of property does not take into account these emotional
needs. Following a divorce, single adults may find
certain pets afford a feeling of security. Of itself,
this realization does not resolve spousal disputes,
but judicial recognition of such realities is a step
toward a better understanding of the companionate
importance of pets rather than a strictly property
approach.
A Pennsylvania court ruled that a property settlement giving the wife the absolute right to the
dog (“Barney”) was enforceable and dismissed the
husband’s request for shared custody and visitation
with the dog.22 This is the logical result of having
considered the animal as merely a form of personal
property, in contrast to the entirely different kind of
analysis about custody or visitation with children.
A New York court made clear its view that a
dog is merely a variety of assignable property by
treating a chocolate lab retriever of no ascertained
economic value as marital property subject to a prejudgment assignment of custody to the wife and a
final distributive award of the dog, with credit after
its value had been determined to be governed by
the state’s equitable distribution law.23
A Florida court applied a strict property analysis
to a custody/visitation dispute in reversing a trial
court’s order giving the husband custody of the
dog named “Roddy,” but allowing the wife visitation of every other month. The court noted that,
while some states have treated pets as entitled to
special status, it did not think this course was wise.
The court said that, “[d]eterminations as to custody
and visitation lead to continuing enforcement and
supervision problems,” and remanded the case for
the trial court to “award the animal pursuant to the
dictates of the equitable distribution statute.”24
A Texas court ruled that a dog (named “Bonnie
Lou”) was the personal separate premarital gifted
property of the wife, but refused to resolve the husband’s visitation claim, noting that love of the little
canine should be shared and not argued about.25
In the end, this is a way for a court to refuse to
become entangled in a pet custody dispute, but
it also ignores the claims of the husband. It might
have been better for the court to simply have made
a determination whether it would have been best to
either allow or deny visitation.
An Ohio court affirmed a trial judge’s award of
two dogs to the husband on a ruling that “under
Ohio law, dogs are considered personal property,”
230 AMERICAN JOURNAL OF FAMILY LAW
and took into account the fact that the husband had
trained the dogs and was primarily responsible for
their expenses.26 But then, in a reflection that some
consideration should be given to non-property factors relating to the welfare of the dogs, the court
noted that the dogs have “ample space to run and
they are cared for by an on-premises caretaker” in
the husband’s custody.27 This kind of result, while
bowing to the property analysis, also opens the
door to consideration of the best interests of pets in
future cases.
dog as part of the agreement, the court found that
there was such an agreement but refused to grant
specific performance. The appellate court reversed
and remanded the case, noting that the woman had
established both the subjective and unique value
of the dog independent of its market value based
on its particular importance to her as a pet and
her prompt effort to obtain specific performance
when her former boyfriend refused to give the dog
to her.32
CONCLUSION
If a pet is property, can an owner transfer it
by gift, sale, or will?
In a Virginia case, a husband failed to prevail on
a strictly property law argument regarding custody
of the family dog, “Grunt,” as being a form of separate property,28 but only because the husband had
failed to raise the issue at trial.29
A court in Alaska came quite close to treating a pet more like a person than an item of personal property. In a post-dissolution action, the
state’s supreme court revoked a prior joint ownership judgment of a dog called “Coho” on evidence that the dog’s safety was threatened by the
ex-wife’s other two dogs and the wife’s boyfriend
had injured the dog; awarding the former husband sole legal and physical custody of the dog.30
A New York court also leaned away from a purely
property analysis in a case involving two women
who disputed custody of a cat (named “Lovey, nee
Merlin”); it ruled that, “[c]ognizant of the cherished
status accorded to pets in our society, the strong
emotions engendered by disputes of this nature,
and the limited ability of the courts to resolve them
satisfactorily, on the record presented, we think
it best for all concerned that given his limited live
expectancy, Lovey, who is now almost ten years
old, remain where he has lived, prospered, loved
and been loved, for the past four years.”31
A New Jersey court, while noting that a pedigree dog was registered by the American Kennel
Club in the name of formerly engaged and now disputing parties, took the position that the dog was
worth more than its monetary value. The plaintiff
alleged that when their marital engagement broke
up and the man kept the dog, the parties entered
into an oral agreement governing both the dog and
the home. While the man subsequently disputed
his alleged promise to let the woman keep the
When divorcing couples assert conflicting claims
over the custody of pets, the disputes often cannot be resolved to the satisfaction of both spouses
because such strong emotions are engendered in
such cases.33 Of course this is also true as to child
custody disputes, but at least the law has developed some specific statutory and judicial standards
for resolution of parental disputes over child care
and custody. Such standards are lacking as to resolution of pet custody disputes, and it will take years
into the future to develop them. At the very least, a
move away from the “property” approach toward
a “companionate” standard will be a good starting
point.
NOTES
1. Among such organizations are the Humane Society
of the United States, the Animal Legal Defense Fund,
the Student Animal Legal Defense Fund, the Natural
Resources Defense Council, and the Society for the Prevention of Cruelty to Animals.
2. See, for example, the symposium on legal education
and courses on animal law in both doctrinal courses and
legal clinics in 60 Journal of Legal Education 193-295
(No. 2, Nov. 2010). A number of law schools now also
publish law reviews devoted to animal law, and students
from many law schools participate in the National Animal Law Competition.
3. David Favre & Murray Loring, Animal Law (1983);
Cass Sunstein & Martha Nussbaum (eds), Animal
RIghts: Current Debates and New Directions (2004);
Tammy Bryant, David Cassuto & Rebecca Huss, Animal
Law and the Courts: A Reader (2008); David Favre,
Animal Law: Welfare, Interests and Rights (2008);
Bruce A. Wagman, Sonia S. Waisman & Pamela D. Frasch,
Animal Law: Cases and Materials (4th ed. 2010). See
PETS IN DIVORCE: FAMILY CONFLICT OVER ANIMAL CUSTODY
also, Adam P. Karp & Julie I. Fershtman. Recent Developments in Animal Tort and Insurance Law, 45 Tort Trial &
Ins. Practice L.J. (2010); Christopher D. Seps, Animal
Law Evolution: Treating Pets as Persons in Tort and Custody
Disputes, 2010 U. Ill. L. Rev. 1339 (2010); Rebecca J. Huss,
The Pervasive Nature of Animal Law, 43 Val. U. L. REv.
1131 (2009); David Favre, Living Property: A New Status
of Animals Within the Legal System, 93 Marq. L. Rev. 1021
(2010).
4. This conflict was reflected in a lengthy New York
Times article about intense conflicts over dog ownership in housing cooperatives. See Bob Morris, Civility on
the Way Out? Add Dogs to that List, N.Y. Times, April 28,
2011, E1 (providing examples of conflicts in multi-family
housing units about animals owned by individuals and
families).
5. Federal law provides penalties for failure to provide
proper care for animals, 7 U.S.C. §§ 2131-2159. The vast
majority of states have enacted statutes prohibiting cruelty to animals; see Margaret Graham Tebo, Pet Project: New ABA Committee on Animal Law Focuses on
Post-Katrina Rescue Efforts, 91 A.B.A.J. 72 (noting that
widespread state laws prohibit animal cruelty). For an
example of a …
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