The Marriage of Family Law and Animal Rights

Fox Cynthia , ‘Courts View Pets as Property in Divorce Battles,’ St Louis Post-Dispatch (St Louis, Missouri), 19 April 2006, A08.

See Perry Nancy , Ten Years of Animal Law at Lewis and Clark Law School' (2003) 9 Animal Law i, ix; Liverani Mary Rose , Animal Law Graduates to Legal Discipline' (2004) 42(6) Law Society Journal 16; White Steven , Animals and the Law: A New Legal Frontier?' (2005) 29 Melbourne University Law Review 317; Lamont Leonie , ‘For All Creatures, A Law Course Looks at Problems Great and Small’, Sydney Morning Herald (Sydney), 10 July 2004, 5.

Gossage Roza , ‘Pet Custody: The New Frontier in Family Law’ (2002) 45(5) Family Law [6] <http://www.illinoisbar.org/Sections/FamilyLaw/6-02b.htm> at 31 October 2006.

See, eg, Britton Ann , ‘Bones of Contention: Custody of Family Pets’, (Working Paper No 94, University of California-Berkeley, 2003) 1; see also Akers v Sellers 54 NE 2d 779 (1944), 114 Ind App 660.

There are no reported or unreported pet custody cases in Australia's family or other courts. However, the media has sporadically documented this phenomenon, largely in the context of the high-profile divorces of celebrities and others in the public limelight: See, eg, Watson Bronwyn , ‘Who Gets the Dog?’ Sydney Morning Herald (Sydney), 3 May 1990, 7.

Definition of ‘family law’ in Butt Peter (ed), Butterworths Concise Australian Legal Dictionary (3rd ed, 2004) 169 (brackets and italics mine). See also definition of ‘matrimonial cause’ in Family Law Act 1975 (Cth) s 4.

Direct Line Pet Insurance, ‘Britain's Dog Owners to Spend Thousands on Pet Custody’ <http://www.directline.com/about_us/news_030205x.htm> at 2 November 2006 (Press Release, February 2005).

Smith Brad , ‘Who Gets Fido? Former Couples Agree to Share’, Tampa Tribune (Tampa, Florida), 27 October 2003, 1.

See American Academy of Matrimonial Lawyers, ‘More Divorces Becoming Dogfights’ (Press Release, 26 June 2006).

(1999) 198 CLR 511. Wakim struck out as unconstitutional the cross-vesting system, specifically the vesting of state power in federal courts.

Tischler Joyce , ‘Lawyers Must Plan for More Cases About Animals’, Los Angeles Daily Journal (Los Angeles, Califoria), 27 May 2004, 1. See also Garner Robert , ‘Political Ideology and the Legal Status of Animals’ (2002) 8 Animal Law 77.

Huss Rebecca , ‘Separation, Custody, and Estate Planning Issues Relating to Companion Animals’ (2003) 74 University of Colorado Law Review 181, 182.

Blackstone William , Commentaries on the Laws of England (first published 1765–69, 12th ed, 1978) vol 2, 1–2.

Yanner v Eaton (1999) 201 CLR 351, 366 ( Gleeson CJ Gaudron CJ Kirby Hayne JJ ).

Harman Danna , ‘A Fiercer Battle in Today's Divorces: Who'll Get the Pooch?’ Christian Science Monitor, 26 January 2004 <http://www.csmonitor.com/2004/0126/p11s01-lihc.html> at 19 October 2006.

See Family Law Act 1975 (Cth) s 79(4).

Mills Eithne Akers Keith , ‘Who Gets the Cats… You or Me? Analyzing Contact and Residence Issues Regarding Pets upon Divorce or Separation’ (2002) 36 Family Law Quarterly 283, 299.

See Francione Gary , Animals, Property and the Law (1995) for a comprehensive analysis of the proprietary legal status of animals generally. See also Newell Barbara , Animal Custody Disputes: A Growing Crack in the ‘Legal Thinghood’ of Nonhuman Animals' (2000) 6 Animal Law 179.

Favre David , A New Property Status for Animals' in Sunstein Cass Nussbaum Martha (eds), Animal Rights: Current Debates and New Directions (2004) 236.

For an interesting discussion about estate planning issues as they relate to companion animals, see Huss , above n 12, 326ff.

See Bennett v Bennett 655 So2d 109, 110-111 (1995).

See In the Marriage of Stewart 356 NW 2d 611, 612 (1984).

See Boschee v Duncan 133 ACWS (3d) 683 (2004), from Alberta, Canada. However, see also Warnica v Gering 142 ACWS (3d) 87, 88 (2005) which seems to have put an end to ‘pet support’ litigation, at least in Ontario, Canada.

In the Marriage of Stewart, n 22 above; Arrington v Arrington, 613 SW 2d 565, 565 (1981), Tex Civ App 1981.

655 So 2d 109 (1995).

Ibid.

For example, this may necessitate taking into account any wishes of the family pet, pursuant to the recommendations of an animal behavioural expert's report: See Cawley Linda , Legal Beagle: Diary of a Canine Counselor (1996) and Eckstein Warren Madden Denise , Memoirs of a Pet Therapist (1998).

See, eg, the Prevention of Cruelty to Animals Act 1979 (NSW). All other Australian State and Territory jurisdictions have comparable animal protection statutes.

See, eg, Part 2 of the Prevention of Cruelty to Animals Act 1979 (NSW) for offences against animals generally, and specifically s 5(1) for the prohibition on ‘cruelty’ against animals.

See, eg, the Companion Animals Act 1998 (NSW) s 3A, where the principal object of the Act is stated as being ‘to provide for the effective and responsible care and management of companion animals’.

Brown Angie , ‘Family Break–Up Has Pets Licking Wounds’, The Scotsman (Edinburgh), 23 February 2005, 12; Schwartz Maryln , ‘Helping Fido Get Through a Breakup’, Dallas Morning News (Dallas, Texas), 9 June 1987, 1C.

See, eg, Hoff Tanja Bergler Reinhold , ‘The Positive Influence of Dogs on Children in Divorce Crises from the Mother's Perspective’ (Paper presented at the 9th International Conference on Human-Animal Interactions, Rio de Janeiro, Brazil, September 13–15, 2001).

See, eg, Walker Katheryn , The Heart That is Loved Never Forgets: Recovering from Loss: When Humans and Animals Lose Their Companions (1998).

Taylor Nicola , ‘Child Abuse, Domestic Violence and Animal Abuse: Considering the Links’ (2004) 12(1) National Child Protection Clearing House Child Abuse Prevention Newsletter (Australian Institute of Family Studies) [16].

Australian Veterinary Association, ‘Child Abuse Summit Should Include Animal Abuse’ (Press Release, 16 December 2004).

Taylor , above n 34.

Gentry Dianna , ‘Including Companion Animals in Protective Orders: Curtailing the Reach of Domestic Violence’ (2001) 13 Yale Law and Feminism 97; Gullone Eleonora Volant Anne Johnson Judy , ‘The Co-occurrence of Family Violence and Animal Abuse: A Comparison of Violent and Nonviolent Families’ (Paper presented at the Australian Institute of Family Studies Conference: Step Forward for Families — Research, Practice and Policy, Melbourne, 2003).

886 SW2d 368 (Tex App 1st DCA 1994).

Ibid (Hedges and Duggan JJ) (footnotes omitted). See also Laura Ireland, former director, National Center for Animal Law at Lewis & Clark Law School (Portland, Oregon), quoted in Beaven Stephen , ‘Who Gets the Dog?’ The Oregonian (Portland, Oregon), 19 April 2003, D1.

Waldau Paul , ‘Will the Heavens Fall? De-Radicalizing the Precedent-Breaking Decision’ (2001) 7 Animal Law 75, 75.

Joint Select Committee on the Family Law Act, Family Law in Australia (1980) [7.10].

Pippos Chris , ‘Pets Used as Bargaining Power in Custody Battles’, Guardian Messenger (Adelaide), 29 August 2001, 26.

See Beck Aaron Katcher Aaron , Between Pets and People: The Importance of Animal Companionship (revised ed, 1996). See also Peter Salmon Ingrid , ‘Who Knows Who? Psychological Research into the Human-Pet Bond in Australia’ in Katcher Aaron Beck Aaron (eds), New Perspectives on Our Lives with Companion Animals (1983).