| November 9, 2012

Breakups can be tough, especially when there are kids or property involved. But the custody of a shared dog or cat can also become a central issue when a couple separates or divorces — and that issue can easily lead to anguish, arguments, and in some cases, the courtroom.

“I started encountering these types of custody cases about 15 years ago,” says New Jersey attorney Gina Calogero, who specializes in animal law with a high concentration in pet custody. “We were laughed at by judges because they were so shocked.” Today, Calogero explains that pet custody cases aren’t uncommon at all, with more and more couples turning to lawyers after a breakup. “Sometimes, it’s an outgrowth of a divorce, but sometimes, it’s the central issue,” she says.

In the eyes of the law, however, Calogero outlines that “custody” of your pet isn’t technically what a pet-owner should be expecting when they enter a courtroom. ”In all 50 states, animals are considered property,” explains Calogero, saying that judges won’t grant custody or a pet, but rather award “property” as they see fit.

But there’s more than one type of property, explains Calogero, and animals fall into a separate category than fungible property such as cars or homes. “Fungible property can be replaced, and can be compensated by money,” she states. Dogs and cats, on the other hand, are unique property (along with things like artwork or heirlooms) that can’t be quantified or replaced with money, and they’re a bit trickier to deal with.

“The best interest of the dog is not supposed to be considered,” Calogero says, adding that possession hearings are “very facts sensitive,” but also noting that the name on a pet’s adoption papers isn’t necessarily the end of the inquiry.  A judge might look at the relationship of the pet to the owners, such as who’s been making the medical decisions, who’s been caring for it, or who’s been paying the veterinarian bills. Owners can also compile evidence, such as medical records, photos and training histories, and a decision will then be made based on these factors.

“Most often, it’s sharing,” Calogero tells us, saying that unless there are kids involved, (“most of the time, the dog is going to go where the kids go”) owners can plan on joint possession. In cases where the exes move far apart from one another, she’s also seen visitation setups in hotels, or longer-term sharing arrangements.  “One judge determined that [a separating couple] would share possession, five weeks on and five weeks off,” she recalls, adding that their dog was “very happy” with that decision.

But before a nasty legal battle is brought before a judge, Calogero urges pet owners to think about their animal’s best interest. “The first thing you have to do is put aside your emotional issues … and start thinking about your love for the animal,” Calogero says, explaining that too often, the motives behind litigation might be revenge, spite, or simply to hurt the other party. “That’s not something that should be rewarded,” she believes.

Those are sentiments that Charles Regal, a San Francisco-based pet mediator, very much agrees with. “I don’t like people using their pet as a pawn in an emotional tug-of-war,” says Regal, who also feels that courts are “the worst place to deal with anything relating to the human heart.” Regal instead practices something he calls “pet-centric” mediation, and focuses his sessions on the animal at the center of the issue. “Instead of deciding who gets to keep the dog or the cat, I ask, ‘What can we both do to help this dog or cat through this transition, and how are we best going to be a part of this animal’s life?’”

Regal has helped hundreds of divorcing and separating couples (and sometimes even two ex-roommates) through his “intensive, strategic brainstorming sessions,” where he helps develop solutions based on the pet’s best interest. “I’m willing to work with people to get a resolution that’s going to work out for both of them,” he says. “Something they both can really feel good about.”

Sometimes, this resolution comes in the form of  what Regal calls a “working draft agreement,” which, although not legally binding, outlines the needs and wants of each party along with the terms of their agreement. Regal says that his clients can get the agreement notarized or revised by a lawyer if they wish, but that its real purpose is to open communication and facilitate understanding. “My only requirement is that people come with an open mind, and if they’re not going to agree, just understand the other person.”

And according to Regal — who has been working as a community mediator for over 30 years — his methods bring about better results than a court-ordered ruling. “I think this a much more human way of doing it, which brings more satisfaction to the couple,” he believes. “It’s also a hell of a lot cheaper,” he adds.

Attorney Gina Calogero agrees, warning that battling for pet custody in a courtroom can cost several thousands of dollars, but emphasizes that it can also cost people their companions. “Your best bet is to settle,” says Calogero. “When you walk into a courtroom, you lose control of the outcome,” she says, adding that it’s cheaper to hire an attorney to write up an agreement that’s enforceable by law.

“Litigation is a lot more expensive than negotiation,” she concludes.