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Is Your Pet “Property” or a “Member of the Family?”

by | Feb 10, 2015

Even though many people treat their animals as important members of their family, when it comes to divorce, Wisconsin pets are generally considered property and are not treated as “children.”  The Court does not award “placement.”  But this analysis is changing, as more recognition is given to the fact that pets are members of the family. While one philosophy takes the position that a pet is property, gaining ground is the custody analysis which addresses the “best interests” of the pet.

“The depth of this familial attachment is evidenced by statistics cited in Bones of Contention: Custody of Family Pets, which appeared in the 2006 Journal of the American Academy of Matrimonial Lawyers (Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J Am Acad Matrim Law 1 [2006]). These statistics show that 76% of pet owners feel guilty about leaving their pets at home, 73% have signed a greeting card “from the dog,” 67% take their pets to the veterinarian more often than they go to their own doctors, 41% take their dogs on vacation with them, and 38% telephone their pets so the animals can hear their voices when they are away. Perhaps even more striking is the article’s report that “[a] Gallup Poll showed most pet owners would not trade their pet for even $1 million in cash” (id. at 16).”  Travis v. Murray.

The Wisconsin Supreme Court in Rabideau v. City of Racine addressed the pet issue as follows: “[W]e are uncomfortable with the law’s cold characterization of a dog . . . as mere ‘property.’ Labeling a dog ‘property’ fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property.”

The issue of pet allocation in divorce is changing from a traditional property approach to a more caring recognition that a pet is far more than property. You cannot use the same analysis for a pet as you would use for a sofa or a Ford Fiesta. And, while not to be given the same consideration of best interests as in a child custody or placement determination, Courts are beginning to look at not only who may have purchased the pet but where the pet prefers to spend time, who takes the pet to the vet, who feeds the pet, who gets the most companionship from the pet, etc. Courts are taking a middle of the  road position, weighing all relevant factors, determination of which is left to the Court reasoned analysis.

Written by Vanden Heuvel & Dineen, S.C.

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