Who Gets Custody of Fido After a Divorce?

As a mother of a three (3) year old, I spend a fair amount of time (more than I’d like to admit) immersed in animated television programs. I am struck by how many of these programs revolve around pets.  From Chase from “Paw Patrol” being “on the case,” to Caillou’s cat Gilbert going to the vet (is there really a more polarizing cartoon character than Caillou?), to the summer blockbuster “The Secret Life of Pets,”which follows the lives pets lead when their owners are at work or school (sequel coming soon), pets are an important part of daily existence.

A dog owner myself, I can appreciate how a pet becomes a central part of a family. Given the love people have for their pets, it is understandable that “Fido” can factor heavily into a divorce. Much to animal lovers’ chagrin, however, most states (including Massachusetts and Rhode Island), consider domestic animals to be personal property subject to division between parties to a divorce matter, just like cars, boats, furniture, salad spinners, etc. An informal, personal poll of several family court judges in Massachusetts suggests that judges are loathed to spend time thinking about the best interest of a pet, or fashioning a time sharing plan for a pet.

In 2017, in an effort to change this thinking, State Representative, Charlene Lima, introduced a bill to the Rhode Island Legislature seeking to require judges to take “the best interest of the animal” into account when deciding who gets “custody” of domestic animals in a divorce. If this bill becomes law, Family Court judges would be required to undertake the same analysis in awarding custody of pets that they undertake in awarding custody of children.

While the Rhode Island bill has not yet become law, the Rhode Island Supreme Court was recently tasked with deciding the case of Giarrusso v. Giarrusso, a case where two former spouses were in disagreement about the husband’s entitlement to visitation with two dogs that were acquired during the marriage. The parties to the case were divorced after a twenty-three (23) year marriage. As part of the parties’ divorce agreement, the wife was awarded possession of the parties’ dogs, but husband was permitted to take the dogs for visits from Tuesday morning at 8:00 a.m. through Thursday morning at 8:00 a.m.

Shortly after the parties finalized their divorce, this arrangement broke down and the husband returned to the Family Court seeking to enforce the parties’ time sharing agreement relating to the dogs. The wife countered the husband’s filing arguing that the husband had not properly cared for the dogs and had kept the dogs away from her in violation of their time sharing agreement.

The Court ultimately determined that the wife had inappropriately kept the dogs away from the husband. The Family Court ordered the wife to resume the time sharing arrangement for the dogs and awarded the husband his attorney’s fees (over $5,000). The Rhode Island Supreme Court agreed with the Family Court and affirmed the Family Court’s decision. It is important to note that in this case the Family Court was not tasked with determining custody of the dogs, but was tasked with enforcing the time sharing arrangement that the parties themselves had agreed upon.

It will be interesting to see whether Rhode Island (or Massachusetts) ever enacts a law similar to Alaska, which requires courts to take “into consideration the well-being of the animal” and explicitly empowers judges to assign joint custody of pets. Such a law, while possibly ensuring better outcomes for family pets, would no doubt create further strain on court systems that are already overburdened and under resourced. If such legislation is enacted, there will be some who will be feeling “like a dog with two tails” and others who will believe they were “barking up the wrong tree.”

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