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To Love, Honor and Belly-Scratch

Sanjiv Bhattacharya's last story for the magazine was about the human need for speed.

In a vet’s office in Brentwood, a wife sits with her divorce lawyer and her husband sits with his, both of them waiting in opposite corners of the room for a Pomeranian we’ll call Lemons, the pet they bought together when they were happily married. Today, now split, they’re here to settle who gets Lemons. Her case is that she fed the dog, but he insists he walked it. As with most everything else in this marital meltdown, the dog has become a bone of contention.

As the vet brings Lemons in, both wife and husband spring to life, both of them calling and patting their knees. “Here girl! Come on Lemons!” The poor creature looks confused for a moment. Then he bounds over to the wife. It’s settled--Lemons apparently has a greater emotional bond with her. Such is the force of these calling contests that ultimately, in an out-of-court settlement two months later, she will be awarded full custody of the dog. In return she will compensate her ex with $1,200.

“These things are a big deal,” says the wife’s attorney, J. Michael Kelly of Santa Monica. “First you need a neutral ground, like a vet’s office--not the regular vet, though. Beach is good. You could go to a park as long as there aren’t too many other dogs around--you don’t want [the dog] to be distracted. For a couple of days beforehand, it has to stay with a third party so that nobody has an unfair advantage, which you would if you fed the dog that morning. But you still have to be careful. People always try things. They rub their hands with sausage so the dog will come to them. That’s why you need the vet there, to check their hands.”

That couple certainly isn’t the only one warring over a pet these days. A combination of a vigorous divorce industry and an equally vibrant pet industry--spending on pet products and services was expected to hit a record $34.3 billion last year--has led to a dramatic increase in pet custody disputes during the last decade. Though accurate figures have yet to be compiled in this fledgling field, one attorney and legal scholar believes there has been a hundredfold increase in the frequency of these cases since 1990.

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The lengths to which couples will go for their pets knows no limit. Smearing sausage on your hands is only the beginning. Kelly has dealt with cases in which dogs are traded in divorce settlements for sums of up to $30,000. “I’ve seen animals traded for jewelry, for part of a pension plan, for a fraction of the cost of a house,” he says.

Then there are the legal fees. In 2000, one San Diego couple, Stanley and Linda Perkins--an anesthesiologist and a bespoke publisher respectively who owned two Porsches, a Ferrari and a house with an ocean view--spent $146,000 on their divorce battle, some of which concerned custody of a pointer-greyhound mix named Gigi. Among evidence shown to the court was a “Day in the Life of Gigi” video, shot by Linda, featuring Gigi snoozing under her chair at work, playing at the beach and cuddling at home. She got the dog.

Typically, those involved in pet custody cases are affluent, childless couples--which fits both of the cases just described. According to surveys by the American Pet Products Manufacturers Assn., pet ownership has grown in two specific demographics--young couples who are waiting longer to have children, and baby boomers whose children have grown up and left home. These childless couples develop the strongest attachments to pets. They treat them like children--the kind you can spoil with gifts and dress in cutesy outfits without worrying whether they’re doing well at school or making the right kinds of friends.

And so animal custody cases increasingly resemble child-custody cases, and can be just as bitterly fought and expensive. While child psychologists are employed to determine the child’s living conditions and health with each parent, so vets and animal evaluators are employed for pets. Like children, pets suffer from being tussled over. According to Deanie Kramer, a mediator for Divorce Resource Inc., one high-profile news anchor had his dogs flown back and forth from New York to Los Angeles as part of an elaborate visitation agreement. “I also had a bizarre case with a parrot,” she says. “Before he gave it to her, he taught it to say [obscenities] just to embarrass her.” There are also stories of spouses killing the pet to spite the other; stories of pups in washing machines, cats in microwave ovens, a strangled macaw.

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The key difference between child and animal custody cases, however, is that in the former, the welfare of the child is paramount, whereas the animal’s interest rarely has a bearing. The letter of the law in all 50 states is stark on the subject--a pet is property, “chattel,” more like a piece of furniture than a family member. To arrange joint custody for a dog is legally equal to arguing a visitation schedule for a sofa, and many judges apply the law literally, to avoid burdening the courts with yet more custody arrangements to monitor. But then other judges, often pet owners themselves, understand the emotional difference between relating to a dining table and relating to a dog. Increasingly, these judges have ruled to protect this relationship.

That bodes well for Los Angeles attorney Sandra Toye, one of a growing number of lawyers in the relatively young field of animal companion law whose mission is to enhance the legal status not merely of pets, but of all animals. In her office at Melrose and Vine, Toye’s pet rats scurry about on her desk. “I’m not some animal-rights nut,” she says, extricating a rodent from her hair. “I’m levelheaded, I’m conservative, I eat meat. But I’m on a mission to show that animals have value in excess of their replacement value.”

In the interests of animals--always a precondition with Toye--she has fought and won several custody disputes in recent years, earning fees in excess of $100,000. (Pet custody is not a poor person’s sport.) Toye relishes a fight. When her client’s cat was stolen by an ex-boyfriend--who then claimed that the cat had run away--Toye secretly staked out his house for weeks, taking photographs of the cat going in and out, and she threatened him with hefty emotional distress lawsuits until he buckled.

More recently, she won custody of a border collie we’ll call Pepperoni. The fallout here was not between a husband and wife but between the client’s ex-wife and Pepperoni’s breeder. The breeder had given Pepperoni to the wife, her good friend, without any exchange of money or contracts. Then when the marriage went sour, the breeder snatched Pepperoni back by force, claiming that the dog was hers.

Though not a divorce case, Toye employed many of her custody arguments, such as property law, to her advantage. “My argument was that if this dog was proved to belong to my client,” she says, “then I needed to ensure that it retained its value.” It’s an argument that might apply to family heirlooms or works of art, which require specific maintenance. In Pepperoni’s case, she hired evaluators to compare the living conditions of the breeder, who kept 50 other dogs at her property, to those of her client, who kept seven, some of which compete in herding trials.

“I claimed he was a show dog even though he wasn’t competing,” Toye says. “We wanted to take the case to a Superior Court, a court of unlimited jurisdiction, so we had to prove that damages are in excess of $25,000.” And after 11 months, and more than $50,000 in legal fees, the breeder conceded and returned Pepperoni to her client for good.

“I know it was financially dumb,” says the client, “but my mind-set all along was, ‘We’re not going to let them win.’ This is an animal that I love. I have no children, so [my dogs] are all my friends, my family, my teammates. To steal someone like that out of my house is emotionally devastating.”

The disconnect between the law and heartbreak is symptomatic of the inconsistencies that bedevil animal law in general. For instance, while Pepperoni is the legal equivalent of a sofa, he is nonetheless protected by anti-cruelty laws. Of course, Pepperoni is a sentient being, capable of experiencing cruelty in a way that a sofa is not, but then--the inconsistencies continue--why should “food” animals, who are as feeling and emotionally alive as Pepperoni, be for all practical purposes exempt from cruelty legislation?

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These discrepancies go to the heart of society’s schizophrenic attitudes towards animals. Argues Corey Evans, an attorney from San Francisco: “If you took a dog and you pumped a pound of food into its stomach in three seconds, three times a day, for three weeks until the dog was so diseased it couldn’t move to defend itself from rats eating it alive, then people would lose their minds. But do it to a ‘food’ animal to make foie gras and people aren’t so shocked.”

Still, societal sands are shifting. California recently passed a bill banning the production of foie gras starting in 2012. And the animal-rights group In Defense of Animals has succeeded in changing the term animal “owner"--with its property connotations--to animal “guardian” in city codes in such places as San Francisco and West Hollywood. In cases of veterinary malpractice, juries now are setting monetary values for animals far in excess of their market value. In Orange County, for example, when a 3-year-old dog called Shane was killed through malpractice at the All Care Animal Referral Center, pet owner Marc Bluestone sued and was awarded more than $30,000. The jury said that though the mutt had a $10 “market value,” she had a special worth to Bluestone that they put at $30,000. They also awarded $9,000 for vet bills.

And although courts frequently will bend over backwards to accommodate the dying wishes of a pet guardian, if that request is that the pets be put down, the wish is often refused. These cases are particularly unusual in that they defy the owner’s wishes in favor of the interests of the animal. Moral of the story: If you want to kill your pets, do it while you’re alive.

The wave of pet custody cases joins this list of small victories for the animal-law community. The more courts recognize the value of the relationship between a human and a pet, then the further animal-welfare issues are nudged in animals’ favor. But the cases beg certain questions: Is there a slippery slope? Could pet custody rulings affect the treatment of lab rats or abattoir cows?

Bruce Wagman, an attorney and professor who teaches three university courses in animal law (including at UC Berkeley and the Hastings College of the Law in San Francisco), is wary of getting ahead of himself. “Pet custody is just one way of taking down the wall,” he says. “For courts to recognize the value of a human/animal relationship would be one of the bricks.”

Wagman dreams of a world without cruelty to animals. He has no children. “I never wanted them and neither does my wife,” he says. Instead he keeps three dogs and four cats, referring to them as “animal children. In terms of my love and passion, I know it’s as strong as anyone else has for their human children.”

With help from Wagman, the Animal Legal Defense Fund now issues a friend-of-the-court brief in certain cases, imploring the court to consider an animal’s interests in pet custody disputes. The brief argues for the emotional consciousness of animals and the strength of the bond with humans, citing a survey that “more than half of companion animal owners would prefer a dog or a cat to a human if they were stranded on a deserted island. Another poll revealed that 50% of pet owners would be ‘very likely’ to risk their lives to save their pets.”

Clearly the greater the emotional bond, the better the animal’s interests are protected, which would explain why dogs are, by far, the most contested pets in custody cases. Cats come in a distant second, and then horses and even monkeys. (No iguanas as yet.) The sheer love and slipper-fetching devotion that canines give their owners makes them harder to part with than, say, cats, which even cat lovers admit are in it more for themselves. Dogs are also of particular comfort in these uncertain times--with the insecurity of the workplace, the fragility of families, the demise of community and the pace of modern living.

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Theories abound. Raoul Felder, a celebrity divorce lawyer from New York, attributes the rising incidence of pet custody cases to “an alienated society, especially in the big cities, where you don’t know the guy across the hall.” Bob Vetere of the American Pet Products Manufacturers Assn. points to “lifestyles becoming more frantic, and the world becoming more of a scary place.” In a divorce, the pet is usually the one source of calm, he says. “You can yell at a dog all day long, but as soon as you pick up a tennis ball, he’s your best friend. Yell at your spouse all day long and a tennis ball ain’t going to do it.”

Certainly, a pet’s value is only heightened during a divorce, a time when warring spouses reach out to their animals for unconditional loyalty as existing bonds are being torn asunder in the courts. And this is the irony--that the case for animals being recognized as members of the family should be raised in the context of families breaking up.

Yet perhaps it’s fitting that our relationships with animals should gain in force as our human relationships degrade. Perhaps it is in the field of human relationships that animals have the most to teach us. Besides innocence, simplicity and the lust for survival, a dog can also teach us fidelity, perseverance and, as writer Robert Benchley once remarked, “to turn around three times before lying down--very important traits in times like these.”


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