Divorce Wars: Who Gets Custody of the Dog?

When the fur flies, custody of the family dog is the new battleground.
By Curtis Pesmen, March 2020
divorce and dogs

Even when he was happily married, Boulder, Colo. , jeweler Kit Hollingshead used to crack jokes: “We’ve been married 15 years—they’ve been 12 of the best years of my life.” Back then, people who knew Hollingshead used to say, “Kit likes to make things right.”

So when his trial separation became a permanent separation, and then divorce, in 2002–2003, Hollingshead and his ex-wife, Sue, said they wanted to put their two daughters (11 and 6) and their dog, Spot (a Pit Bull/Retriever shelter adoptee), first. Living in a university town with liberal views and thousands of dog “guardians” instead of owners (thanks to a city ordinance), Kit and Sue found ample support for their decision to not uproot their children and dog right away and to try to “do” divorce differently. At least at first.

Instead of immediately selling the house, which would have required each of them to move into smaller homes or fixer-uppers in less pricey zip codes, Kit and Sue decided to try “bird-nesting”— one of the latest twists in postmodern, post-marital transitions. “The kids and Spottie all stayed in their home,” Kit explains, “and Sue and I took turns moving out and back into the house, two weeks each month.” In theory, bird-nesting makes good sense. Fewer new room setups. Fewer new beds, sets of sheets, pillows, leashes and food bowls to buy.

In practice, though, it isn’t as seamless a strategy as one might imagine, for either kids or dogs. Over time, therapists point out, children sense such large changes, and they may see their parents’ leaving the house as something “exciting, new,” while the kids get “stuck at home,” the same old “divorced” home…nothing exciting there—just a house full of family history, and now, at times, sadness.

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See Spot Stay

As for Spot, he had no complaints (at least at first). No re-homing necessary. Same routine, same squirrels, same smells in the yard and in his mountain-foothills neighborhood. And because Kit and Sue voted for mediation instead of court, their eventual divorce seemed softer than it might have been.

Unfortunately, with the U.S. divorce rate now hovering between 40 and 60 percent for first marriages (according to the American Association of Marital and Family Therapists), splitting spouses can rudely undo a dog’s need for stable companionship. The jury is still out on the big questions: Is 50/50 canine custody best (what ratio worked best before the divorce)? Should a dog shuttle back and forth between partners? If so, whose best interest is being served? This kind of disruption can be suitable or well tolerated, or it can be exacerbated by divorce court if steep alimony demands or charges levied by lawyers move beyond pettiness and cut close to the heart. Attorneys versed in “dog divorces” say it helps greatly to have a judge (or mediator) who knows dogs.

Fortunately, more of them are learning about dogs every day. At last count, nearly 25 percent of respondents to a recent American Academy of Matrimonial Lawyers’ (AAML) member survey said they have seen a rise in the number of pet custody cases over the past five years. “As couples…work out divorce settlements in atmospheres charged with raw emotion, pets are increasingly representing a new kind of battleground between the two parties,” notes Cheryl Lynn Hepfer, AAML president.

“Normally, 98 percent of these kinds of cases settle before they get to court,” says Sandra Toye, a California attorney specializing in animal law cases. “But in my practice, only about 50 percent are settled. We end up pushing the envelope back and forth—trying out new ways to resolve things—because animals, by law, are only considered ‘property, ’ and so there are a limited number of remedies at your disposal in court.” One of those remedies is hiring psychologists who can testify to the depth of the bond between owner and dog—which remains one of Toye’s favored approaches.

In a leafy suburb outside of Chicago, Robin Stiebel, who knows about such bonds and who boards dogs at her home from time to time, pushed her lawyer hard to win “custody”of Shayna, her German Shepherd/Pointer mix, in her 2001 divorce decree. After the divorce became final, Stiebel assumed Monday-to-Friday custody of Shayna; she also opted to let her ex take over on weekends, as he and Shayna shared an affinity for Frisbee and Frisbee golf. “We even agreed to share costs of food, medical bills and health insurance,” Stiebel says. But this all took work, and cunning, to become (mostly) amicable. “At one point, I told my lawyer that our dog was in jeopardy,” Stiebel relates. “[My ex] called and wanted Shayna the weekend before our divorce became final. I was worried, and [contacted] my attorney. He said, ‘Possession is nine-tenths of the law. Tell him he can have her next weekend. ’[My ex] didn’t contest the divorce, but I wasn’t sure what to do,” Stiebel says. “So I called and told him Shayna had plans [that] weekend. He said, ‘How can she have plans?’ I just knew there was no way he could have her that weekend …It was a very scary time for me.”

Even with caring and careful legal counsel, “it’s a very rare judge who will get involved in a custody agreement with an animal,” says Laura Ireland Moore, founder and executive director of the National Center for Animal Law, in Portland, Ore. “They want you to figure it out. But if you have a good attorney, the judge will have you draft a [separate] contract for the care of the dog after divorce. Then, if you fail to bring Fluffy back by [the time you’ve agreed upon], it’s considered a material breach, and the dog may go to the other party. Maybe this would happen after the contract’s broken three times.”

In Stiebel’s case, the pet custody language was clear but not ironclad: “The husband and wife jointly own a German Shepherd and Pointer mix, age 7, by the name Shayna, ”the divorce decree reads. “Shayna will remain in the exclusive possession of the wife,” it adds, “however, the husband shall be entitled to visitation with Shayna, as so agreed between the parties.”

Tough Love

In the absence of clear rules for dog “visitation,” family law judges often don’t recognize the powerful bonds between dog lovers and their animals. Especially when the main issue before them is the division of property accumulated in a marriage, an explicitly legal bond. As Judge William Mahon, a Pennsylvania arbiter, has said, “The possession of personal property may not be treated in the same manner reserved for children. A family dog is, irrespective of the love and care lavished upon it … their personal property.” Tough love, indeed.

It’s not that judges don’t like dogs: They just don’t like seeing their decisions overruled on appeal because they bent the rules for a dog, or didn’t precisely follow the law they swore to uphold. If there’s no legal basis for a judge to establish visitation for a jointly owned painting, for example, there’s no clear basis for a judge to try to enforce equal “pet time” between exes unless it is explicitly written into a separate contract or addendum.

“I don’t think it is odd to argue [these cases],” Toye says. “I sometimes try to ‘teach’ judges. Like an heirloom, especially one passed down by a great-grandma, the animal-human bond has value. But it’s hard to bring dog/owner feelings into the law. So I try to make these connections in court when I can.” Toye says her firm argued for—and won—a case in excess of one hundred thousand dollars on behalf of a pet-owner client who, she says, was clearly “suffering severely” as a result of losing full-time custody of her pet.

With a touch of irony, some pet law attorneys note that a dog’s value to a couple often increases during divorce—at exactly the time when angry partners are fuming and need a dog’s loyalty and comfort more than ever. “We [humans] don’t [keep the] best interest of animals in mind,” states Ireland Moore; for the most part, “judges don’t look at the pain and suffering that animals have gone through. It’s all about the owners.”

A $2 Million Divorce-Dog Tale

Almost from the start, Colorado attorney Caroline Langley had a sense she was stepping into a marital minefield. She was living and working in Hong Kong, it was the mid-1990s, and she’d taken on a mega-divorce case that would soon develop a life of its own. The Jack Russell Terrier who was involved didn’t have a chance. “My client, a woman in her 50s, was extremely difficult,” Langley says. Two spouses, one house, part of an estate approximating $20 million (Hong Kong dollars). Halfway through the case, Langley felt that things would get worse before getting better— or being resolved.

At one point, the husband lost his temper. “And we didn’t blame him,” Langley says. “He just wanted this woman out of his life.” The case went on for nearly a year. “Take everything, just go away,” he finally said. The $5 million Hong Kong home was hers—if, that is, she acted on the offer within 24 hours. “We were saying to her, ‘You have to take this offer. It’s fantastic.’“

Next day, she says, ‘I’m not taking it, ’” Langley recalls. Jaws hit the table. “‘That was yesterday; this is today. I also want the photograph of the dog [that sits] on the piano, ’” Wife said. Simple enough, it seemed. The couple’s beloved Jack Russell had died not long before, and now the marriage had died, too. She wanted the dog. Or the best physical memento of her companion that she could wrangle, thereby depriving her husband of it. Next day, Husband had apparently had enough. Promptly, without apology, he withdrew the offer.

The following week, the Hong Kong housing market crashed horribly, recalls Langley. Suddenly, shockingly, the $5 million house had morphed into a $2 million house (or $1 million to each party). By the time the divorce closed and legal fees and court costs were paid, Wife had lost more than $2.5 million. All because she wanted, and demanded, The Dog. The photo of The Dog. (Which could have been expertly copied and reframed, Langley hastens to add, had the parties been even minimally more civil.) So she ended up with little more than nothing. Not even the framed, mounted image of her prized Jack Russell.

“Nobody won,” Langley now says. Except, perhaps, the attorneys.

Moving On

Back in Boulder, Spot and the Hollingsheads have re-homed since the mediated divorce became final. They’ve sold the “nest,” and now live in neighboring Colorado towns with shared child/dog custody.

Spot seems to have emerged with relatively minor emotional scars from the Hollingsheads’ choice of divorce mediation rather than a court fight. According to Kit, every time Spot is “transitioned” (in the parlance of family therapists) with the kids, he suffers, on cue, a temporary, 24-hour bout of apparent sadness or listlessness.

“He has no spark,” says Hollingshead. “For about a day, he’ll just mope around and hang out on the couch.”

Patricia McConnell, PhD, animal behaviorist and author of For the Love of a Dog, observes that canine and human brains share the same basic structure (and even some basic, powerful hormones). Dogs also share many of our dominant emotions, including fear, anger and a need for security. There’s a chance that—by extension—dogs feel a sense of loss following domestic upheavals that falls well short of classic canine separation anxiety but is nonetheless disruptive.

So, even years after a divorce, even after getting used to one home, then two, for weeks at a time, Spot and countless of his brethren may carry war wounds, of a sort, from divorce. Regardless of how the law chooses to view animals in custody disputes or mediation matters, there’s no arguing one fact: The pain and suffering of a family pet, or that felt by a dog’s guardians, will forever trump the pain and suffering felt by any painting, SUV, plasma-screen TV or diamond heirloom —or, for that matter, by any other legal “property”that must be tended to once one home becomes two. As far as Kit Hollingshead is concerned, he and his ex-wife are doing fine four years later. But he’s still trying to make things right for Spot.

Curtis Pesmen is a Colorado based writer and author whose work has appeared in Esquire, GQ, Glamour, SELF and Outside magazines. He is also the author of How a Man Ages, Your First Year of Marriage, What She Wants and The Colon Cancer Survivors’ Guide. A married father of two boys, Pesmen formerly lived and worked in New York City while raising a Maltese and a black Lab simultaneously.

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