But Who Gets Rover

So you are getting divorced. Sorry to hear that, but join the crowd. We here at The Mark Bamberger Company are doing dozens of them these days.  It is often clear who is getting residential custody of the minor children.[1] If there is a debate, often a Guardian Ad Litem[2] is appointed by the court to investigate what is best for the child/ren. But what about the non-human animals? That is far more complex in the eyes of the court.

Until recently, animals have been considered as property to do with as you do with a TV or sofa. In the current court system, especially in more liberal-thinking states, animals are given roughly the same legal rights as children in a divorce.[3] Their best interest is considered. Often, one of the divorcing parties wants “custody” of the dog, cat, horse, frog, fish, snake, raccoon, cow, ferret, or other non-humans in question. In that case, unless there is a battle (which believes me happens), that party will get custody of the animal and the other visitation rights. No, I’m serious. At a recent Ohio State Bar Association presentation, some of my most passionate questions circled around the idea of visitation rights to see Rover (name changed to protect the innocent).

Judges in Southwestern Ohio are becoming more open to the idea of viewing non-human animals as more than just property and though we are still far away from debating “Should Trees having Standing”[4], there is more understanding that dogs, cats, etc. have feelings and that the divorcing parties really do care about the pet and what happens to him or her.

[1] Custody to one parent almost always includes visitation to the other parent; either unsupervised or supervised.

[2] A Guardian Ad Litem (“GAL”) is a court-appointed representative, usually a practicing attorney, who interviews the child/en, their teachers, relatives, etc. and speaks for the children to the court. In Ohio, as in most states, the age when children can “speak for themselves” is nebulous, but often around 11-13; depending on the maturity of the children in question; as determined by an “in camera “ (in chambers) interview with the judge.

[3] States including Alaska, Hawaii, California, Oregon, Washington, New Jersey, New York, Vermont, Connecticut, Massachusetts, and Rhode Island are giving more consideration to the “best Interest” of non-human animals.

[4] See the seminar environmental ethics essay “Should Trees Have Standing?: Law, Morality, and the Environment 3rd Edition,  Christopher D. Stone, ISBN-13: 978-0199736072

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