Do Dogs Have Standing?
posted by Frank Pasquale
Drake Bennett’s piece Lawyer for the Dog raises some interesting issues in canine custody disputes:
Pet custody disputes have become an increasingly common fixture in divorce cases and [veterinarian Amy] Marder, an animal behavior specialist, has consulted in several. To do a proper evaluation, she likes to spend at least an hour and a half with the couple and the pet. . . .
Marder frowns on so-called “calling contests,” a method used by lawyers in some custody cases, in which the owners stand at opposite ends of a room and call the pet to see which way it will go. She prefers to observe the animal’s body language as it interacts with its owners. She looks at whether it sits closer to one or the other, and how it reacts when each pets it. . . .
Sometimes she recommends joint custody, but only if she thinks the animal can handle it. “Some animals think it’s terrific to go live in two homes,” she says. “Others have separation anxiety and splitting time would only make it worse.”
I wonder if disgruntled parties can appeal to the Pet Psychic? Does a vet’s assessment of an animal’s mental state meet Daubert standards? What is it like to be a dog in the midst of such a dispute?
September 14, 2007 at 8:45 am
Posted in: Family Law
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Responses (4)
Howard Wasserman - September 14, 2007 at 10:53 am
Is the dog entitled to a guardian ad litem? And can law students meet their public interest/pro bono obligations by serving as one?
Patrick S. O'Donnell - September 14, 2007 at 11:26 am
Well, we can make *some* progress toward understanding what it might be like to be a dog, and then by analogy (*see Elster reference below), perhaps what it is like to be a dog in the midst of a custody dispute. Cf.:
Bekoff, Marc. Animal Passions and Beastly Virtues: Reflections on Redecorating Nature (Philadelphia, PA: Temple University Press, 2005).
Bekoff, Marc. The Emotional Lives of Animals (Novato, CA: New World Library, 2007).
Bekoff, Marc, Colin Allen and Gordon M. Burghardt, eds. Animal Cognition (Cambridge, MA: MIT Press, 2002).
Masson, Jeffrey Moussaieff. The Pig Who Sang to the Moon: The Emotional World of Farm Animals. New York: Ballantine/Random House, 2003.
Masson, Jeffrey Moussaieff and Susan McCarthy. When Elephants Weep: The Emotional Lives of
Animals. New York: Delacorte Press, 1995.
Serpell, James. In the Company of Animals: A Study of Human-Animal Relationships. Cambridge,
UK: Cambridge University Press, 1996, revised ed.
*Of course these canine custody disputes may prove in the end to be as rationally intractable as many of their child custody counterparts: see, for instance, Jon Elster, “Solomonic Judgements: Against the Best Interests of the Child,” in his Solomonic Judgements: Studies in the Limitations of Rationality (Cambridge, UK: Cambridge University Press, 1989), 123-174.
Patrick S. O'Donnell - September 20, 2007 at 9:42 am
See too:
Huss, Rebecca J. “Valuing Man’s and Woman’s Best Friend: The Moral and Legal Status of Companion Animals,” Marquette Law Review, Vo. 86, No. 1, 2002, 47-105. Available at SSRN: http://ssrn.com/abstract=1014400
Huss, Rebecca J. “Separation, Custody, and Estate Planning Issues Relating to Companion Animals,” University of Colorado Law Review, Vol. 74, No. 1, 2003, 181-240. Available at SSRN: http://ssrn.com/abstract=1014394
Huss, Rebecca J. “Recent Developments in Animal Law,” Tort Trial & Insurance Practice Law Journal, Winter 2005 (40:2), 233-249. Available at SSRN: http://ssrn.com/abstract=1014464
Scott Wiser - December 10, 2007 at 5:47 pm
It gets even better when one of the spouses files a motion demanding the “noncustodial” pet-owner to pay “pet support.”
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