“Property plus” – A new well-being standard for the family pet in marriage dissolution proceedings
Counter to many of the “rankings” involving Illinois in recent years, one area in which we have consistently ranked #1 (on a list that didn’t have the word “worst” in its title) is our animal protection laws. Thanks to the hard work and passion of many individuals over many years, Illinois has held the top spot in the Animal Legal Defense Fund’s “U.S. Animal Protection Laws Rankings” for the past nine years.
Illinoisans can be proud of this. At a time when pet ownership1 as well as concerns about animal welfare have been on the rise, it is good to be ahead of the curve.
One of the benefits of this type of public acknowledgment is that other states can look to us as a model for how to improve laws in their own states. Concomitantly, one of our responsibilities is to continue to strive, not only to improve upon existing laws, but to be vigilant in our efforts to ensure that new laws “get it right” for animal welfare.
On January 1, 2018, Illinois begins its work as the first state to mandate that in any allocation of a marital asset companion animal under the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), the court “...shall take into consideration the well-being of the companion animal.”2
In criminal cases involving animals, e.g., animal cruelty, neglect, or abandonment, the evidence necessary to meet a burden of proof is easy to imagine: testimony, photos, video about specific actions or non-actions related to the animal. But how will civil practice attorneys go about gathering evidence to establish the “well-being” of a companion animal? Presumably, some consideration of this has already been in use as attorneys and judges have dealt with pets as part of the allocation of marital asset property. But the new language now ensures that well-being will be considered and creates an opportunity for Illinois to again take the lead in establishing how it will be considered.
Many family law practitioners and judges are likely concerned about adding one more opportunity for conflict, chaos, and cost to their caseloads/dockets. Now, in addition to depositions and filings related to the best interests of the children, comes the prospect of testimony about Max and Tiger. For the embattled and beleaguered professionals working these cases, there is the very real possibility that these issues will be met with hostility or derision or simply ignored.
Those of us in the animal law community have an opportunity to help make the transition to the new requirement successful by helping attorneys and judges understand that knowledge from professionals who work with animals can bring order and reason through objective measures to the chaos of dueling claims and accusations about who should “get” the pet. To be sure, practical and procedural challenges about how to most effectively use this expertise will have to be addressed. Those issues will not be covered here, but certainly suggest subject matter for legal professionals to consider.
According to the 2017-2018 National Pet Owners Survey, 68% of American households (about 85 million families) own a pet. The same survey shows dogs at the top of the list of type of pet owned (60.2 million households). Assuming the percentages are similar for Illinoisans, we can assume that dogs will be involved in many of the cases that will be litigated under the IMDMA.
So for the purposes of this article, we are going to focus on the well-being of dogs.
There are some basic needs that cross all dog breeds: food, shelter, veterinary care, exercise/play, and connection. Although the evidence that could be introduced to establish who buys the dog food and pays the vet bills seems pretty straightforward, the other needs can be more complex. Factors like environment, amount, quality, and type of exercise, as well as a given dog’s need for human connection can vary depending on the dog’s breed. All of these factors impact a dog’s physical and psychological health and should be included in an analysis of the dog’s well-being.
But how can attorneys find and effectively present this type of evidence to a judge? Fortunately, there is a lot of empirical research and information available related to canine psychology and well-being. Rather than examine all of the research, we created a hypothetical case and asked a canine behavior professional how she would evaluate the dog’s well-being.
Behesha Doan has more than 27 years of experience as a professional dog trainer. She is the Owner/Training Director of Extreme K9 and the Founder/Training Director for This Able Veteran, a non-profit organization that trains service dogs for veterans with PTSD. She currently operates three professional dog trainers’ schools including the Canine Behavioral Psychology Academy, the Search & Detection Academy and the Post Traumatic Stress Disorder Service Dog Trainers Academy from her training facility located in Carbondale, IL. She is a Certified Dog Trainer and Certified Service Dog Trainer, as well as a talented speaker on the subject of dog behavioral psychology to audiences including veterinarians and legal professionals. She conducts dog behavior seminars throughout the United States, Canada and Europe. Her primary focus is advocating for the heretofore-unrecognized needs of dogs.3
Q: Although the study of canine behavior and psychology has been around for quite some time, it may be unfamiliar to many lawyers and judges. So help us understand how it is that you (and other canine behaviorists) are able to assess a dog’s psychological well-being.
A: Primarily by observing their behavior in the home environment, training (or lack thereof) and especially important is a knowledge and understanding of dogs’ breed traits which are genetically influenced regardless of the environment/training. Through decades of observing dogs (and wolves) in their own environments, we have learned about how they think and what their communication system is, and it is quite predictable, clear, and consistent. Dogs always prefer to be psychologically balanced and respond rather quickly to environments/situations that allow it. In order for them to be well-balanced and healthy, they require appropriate physical expression of both physical and mental energies as well as healthy, fulfilling connection with the human(s) who are responsible for them. Without all of these, dogs can experience inner chaos, anxiety, frustration, confusion, aggression, and reactivity in their behavior. Because domesticated dogs are dependent on humans to meet those needs, their behavior can tell us a lot about what is going on in their relationships with their humans. The quality of a relationship of any kind is determined by how well it meets the needs of the other member. A dog’s mental and physical well-being is directly related to the quality of the relationships with the humans under whom they are dependent.
Q: In a situation with a divorce, which is generally pretty stressful, the quality of the relationships within the family are often strained, or, at a minimum, changing. But many people may not think about or understand how these changes impact the well-being of their four-legged family members. Let’s look at a hypothetical case of a family with a dog so you can help us understand what factors would play into the dog’s well-being.4
After 12 years of marriage, Mr. and Mrs. Jones are getting divorced, and the court has to decide who gets their dog Molly, a four-year-old Golden Retriever. They have two children ages 15 and 17. During the marriage, Mrs. Jones worked part-time and was primarily in charge of Molly’s care, including taking her for regular walks, feeding her and taking her to the vet. After the separation Mrs. Jones now works two part-time jobs with irregular hours. She moved into an apartment in a building that allows dogs. She used to be a walker, but with the second job, she is finding it difficult to work this into her schedule and into their new environs. The children are currently living with Mrs. Jones. Both are busy with school, friends, and extracurricular activities. Although daily walks and time spent with Molly has diminished greatly, Mrs. Jones still enjoys a rich relationship with her. Mr. Jones is living in a rental house where there is a one-acre yard with a fence. He works 8-5 in an office and has recently started taking night classes.
Q: From the perspective of the dog’s well-being, what factors would you consider in evaluating what would be best for Molly’s well-being?
A: In this case, I’m considering the fact that Golden Retrievers were bred to focus on, cooperate with, and interact closely with human beings. Relationship is a crucial component in their quality of life genetically. Even if other factors such as consistent exercise were not ideal, the quality of time spent in relationship with her caregivers would be more impactful to her quality of life. So, even though Mrs. Jones isn’t exercising as much as she used to, Molly would fare better by staying with Mrs. Jones and the children since her genetic needs are for frequent interaction and a more intense relationship.
Q: OK, if the Jones’s had a four-year-old-Husky (Balto), but everything else was the same, how would your analysis change?
A. Huskies were bred to direct their focus outward, to be single-minded in their intensity and desire to run (think of pulling a sled), so Balto’s genetic programming is telling him to run as fast and as far and he can go on a daily basis. Confinement for Huskies is difficult. Plenty of exercise will be a critical factor in his quality of life. Since Mrs. Jones has been unable to take her usual walks and the kids are busy, I would be inclined to recommend that he live with Mr. Jones. Although Huskies certainly do have relationship needs, in contrast to a Golden Retriever, those needs are less and their need for a consistent outlet for their energies and lots of exercise is significantly more. While not an ideal situation for Balto in either case, assuming that Mr. Jones is feeding him and spending some time with him, his well-being would be better served over all with Mr. Jones.
Q: The law will allow for joint custody of pets. What are your thoughts about how these arrangements could affect a dog’s well-being?
A: I would say that joint custody is not a problem in and of itself, but the duration of time away from the more suitable home is definitely a factor. So, in our hypothetical, Balto could be in an apartment for a long weekend and Molly could be left in a fenced-yard away from her primary companions for a long weekend. However, longer periods outside the more suitable home would begin to exact a toll that would be unfair to the dog.
Q: Are there any cases where you would not recommend any type of joint custody arrangement?
A. Yes. There are certain breeds and temperaments of dogs that are prone to anxiety and nervousness for which changing environments and changing caretakers could cause much more distress and subsequent behavioral problems. There are also some dogs that respond negatively to chaotic or unruly environments and would do far better in the most stable environment. A dog of any breed, due its own unique make-up or life experiences, might show signs of distress when moved back and forth.
Q: So that brings us to the issue that each dog, regardless of its breed, or current behavior, will have its own particular needs that will change over time. So, although a dog is still considered property, the court’s responsibility in “allocating” the dog, now that “well-being” must be considered, is fundamentally different than its responsibility in allocating something like a piece of furniture. It seems like there will need to be some agreement in the disposition that whoever gets the dog is going to be capable of recognizing and fulfilling its particular needs over time. Since this is a new way of looking at these cases, what would be your overarching or general advice for lawyers and judges as they begin this work?
A: First I would ask them to recognize that dogs are conscious beings that deserve a good quality of life and that there are many factors that contribute to that quality of life. Because dogs do not share a common language with humans, the only voice they have in the judicial system is the voice that lawyers and judges give them. I would ask them to be open to listening to those of us who have the insight and experience to speak for the well-being of the dogs and other types animals that are caught in these cases. I would also ask them to be mindful of the difference between an owner who Loves the dog and an owner who is willing and able to take actions that will truly serve the dog’s well being. In the hypothetical we looked at, both Mr. and Mrs. Jones presumably care about the dog and are good to the dog, but the question is who is better for their dog.