Pets Should Receive Special Consideration in F.S. Ch. 61, Dissolution and F.S. Ch. 741, Domestic Violence

By Margherita Downey and Sherry Andrews

Florida Bar Journal, Vol. 94, No. 2   March/April 2020   Pg 38

“Laws should be like clothes. They should be made to fit the people they are meant to serve.” — Clarence Darrow

As of March 2019, according to U.S. statistics, ownership of family pets in the U.S. has increased significantly from 2017. Cats and dogs were the second and third most owned pets, with around 94.2 million cats and 89.7 million dogs, respectively, living in U.S. households.^[1] This is an increase in cats and dogs from 2015-2016. Per the American Pet Products Association as reported by the ASPCA in 2017, the estimate was that “85.8 million cats and 78 million dogs were owned in the United States.”^[2] Hence, approximately 44% of all households in the U.S. have a dog, and 35% have a cat.^[3]

Clearly, pets have assumed a larger place in people’s lives and hearts than ever before. Additionally, animals have increasingly been recognized not just as loyal companions with whom we form emotional and psychological bonds, but as service animals who provide help in navigating daily life activities. “Dogs have been guiding the blind, comforting the sick and calming the distressed for more than a century,”^[4] and today owners of dogs and other service animals are given greater rights under the law. F.S. §413.08 (2019), entitled Employment and Related Services for Persons with Disabilities, has expanded to permit service animals in all places the public is invited.^[5] However, §413.08 narrowly defines “service animals” as trained dogs and miniature horses and excludes “emotional support” animals.^[6]

In Florida, the enormous value of emotional support animals has been codified in F.S. §92.55. The Justice’s Best Friend Act permits facility dogs or therapy animals to appear in court for judicial or other proceedings.^[7] Their purpose is to accompany and calm victims and witnesses — specifically, children and persons with intellectual disabilities — in court cases of abuse, abandonment, and neglect.

Similarly, federal regulations on animal rights and welfare have expanded in the U.S., and these rights have been extended in scope to meet the needs of the disabled. As one example, the U.S. Department of Transportation (DOT) Air Carrier Access Act broadly defines a “service animal as any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.”^[8] Accordingly, the DOT regulates and permits service and emotional support animals to travel on aircraft with their owners.^[9]

Beyond the relatively narrow category of service or emotional support animals, the law is also giving greater rights to pet owners and greater protection to pets in other areas. Recognizing the demand to protect an owner’s “fur children” upon the owner’s death or disability, in 1990, the National Conference of Commissioners on Uniform State Laws changed the Uniform Probate Code (UPC) to allow for the creation of “pet trusts.”^[10] Since then, all 50 states, including Florida, have adopted pet trust statutes.^[11] Such trusts are valid for the lifetime of the pet.

In spite of this progress, there are two areas of Florida law where protection and the rights of pets and their owners is woefully lacking — family law cases involving divorce and cases of domestic violence. This article is a follow-up to Professor Timothy L. Arcaro’s article in the June 2017 Florida Bar Journal, “Should Family Pets Receive Special Consideration in Divorce?”^[12] Given the integral role pets play in our lives, the demand is great for pets and service animals to be given special consideration in our family law statutes, just like the changes provided in Florida’s Probate Code.

Marital Dissolution

In 2017, there were 3.6 divorces per 1,000 inhabitants in Florida.^[13] More startling is the finding of a recent poll: “Children in the U.S. are more likely to grow up with a pet than with a father.”^[14] These statistics should raise concern among legislators, litigants, jurists, and family law practitioners on the importance of the family pet and the growing need to expand the law on the protection of and fate of our beloved pets.

At present, Florida family law considers family pets to be “personal property.” Thus, when a divorce is filed, pets are presumptively subject to an equitable distribution of personal property as set forth in F.S. §61.75.^[15] Chapter 61 does not specifically address pets or provide guidance on how to resolve disputes regarding their fate when the family breaks up.^[16]

It is longstanding Florida law that jurisdiction of children’s issues is subject to regulations under the Uniform Child Custody Jurisdiction and Enforcement Act, which is codified in F.S. §§61.501-61.542. Furthermore, family court judges are required to make detailed findings of fact in their judgments, with a mandate to consider the best interests of the children in awarding parental access^[17] — specifically, in determining if the children are best served with the parents having equal timesharing or whether granting one parent a greater parental role after divorce is best.^[18] Moreover, children’s issues are subject to post-judgment jurisdiction, such as modification of access, relocation, and child support.^[19] There are now additional, detailed regulations on a parent’s request to relocate greater than 50 miles from the child’s legal residence.^[20] In contrast, equitable distribution as set forth in §61.75 is designed to be a final conclusive distribution of assets and liabilities. Family courts retain post-judgment jurisdiction solely to enforce distribution orders.^[21]

As for family pets, currently there is only one Florida case that addresses the issue of pets in divorce, decided 25 years ago. In Bennett v. Bennet, 655 So. 2d 109 (Fla. 1st DCA 1995), after hearing the parties’ testimony and the facts of the case, the trial judge granted the soon to be ex-wife visitation with the family dog, Roddy, in the final order of dissolution of marriage.^[22] Unhappy with the trial court’s decision, Mr. Bennett appealed. Unfortunately, Mrs. Bennett’s visitation with Roddy was reversed by the First District Court of Appeal: “While several states have given family pets special status within dissolution proceedings (for example, Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App. 1981)), we think such a course is unwise.”^[23] The First District reasoned that family courts are “overwhelmed with the supervision of custody, visitation and support matters related to the protection of children.”^[24] Bennett remains controlling law on the fate of pets in divorce proceedings, leaving the people in the state of Florida who love them in a quandary. Many childless couples consider their pets as children and remain frustrated by the lack of options to protect their treasured companions. However, it is clear that the law does not have to be this way.

Today, it is a “generally accepted belief, that animals are more significant to us than mere personal property; that they have a special place in our lives beyond that of our cars, furniture, or other items of personal property.”^[25] Courts in states like Vermont, Wisconsin, Alabama, Illinois, Alaska (“well-being” of pets),^[26] California (pets have protection in domestic violence injunctions),^[27] Connecticut and Arkansas (joint legal custody),^[28] Michigan (keeping all the animals together),^[29] New York (best for all concerned),^[30] New Jersey (pets have a special subjective value),^[31] Tennessee (ability of parties to care for the pet),^[32] and Texas have taken the lead in recognizing that people dearly love their pets and have taken the view that animals are more than just property.

In 1999, a New York modern court instituted a standard of seeking the “best for all concerned” as the way to proceed with a dispute over the beloved pet:

Cognizant of the cherished status accord to pets in our society, the strong emotions by disputes of this nature and the limited ability of courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is almost [10] years old, remain where he has lived, prospered, loved and been loved for the past four years.^[33]

In another New York case, Judge Matthew F. Cooper, who properly discloses he owns a pit bull dog he rescued named “Peaches,” stated: “The concept of a household pet being mere property is outmoded.”^[34] Judge Cooper’s 14-page opinion discusses the important task in resolving a dispute over household pets, opining that unlike marriages, “People who love their dogs almost always love them forever.”^[35] Eloquently crystalizing this concept, he sets the stage with the importance of pets in our lives:

Whatever one may think of treating our dogs like people — whether it is called “humanification,” “personhood” or some other means of endowing dogs with humanlike qualities — it is impossible to deny the place they have in our hearts, minds and imaginations. From Odysseus’s ever-faithful dog Argo in Homer’s “The Odyssey,” to the all-American collie Lassie, to the Jetson’s futuristic canine Astro, to Dorothy’s little dog Toto, too, they are beloved figures in literature, movies and television.^[36]

There are several other state supreme court cases that support expanding the view that pets are more than “mere” property. The Wisconsin Supreme Court stated in dicta:

[W]e are uncomfortable with the law’s cold characterization of a dog…as mere “property.” Labeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property.^[37]

Similarly, in a New England tort case, the Vermont Supreme Court in Goodby v. Vetpharm, Inc., 182 Vt. 648, 927 A.2d 792 (Vt. 2007), held “Pets may be distinguished from other chattel by the mutual relationship: Pet owners love their pets and their pets love them back.” In another Vermont case, the supreme court noted “modern courts have recognized that pets generally do not fit neatly within traditional property law principles.”^[38]

As previously stated, in Florida, the court’s findings and division of property under equitable distribution was intended to be conclusive and finalize the division of assets and liabilities, deterring post-judgment litigation. However, given the special role pets have in our lives, the law needs to be expanded to provide judges with the legal authority to specifically address what happens to the family pet and the broad discretion to create remedies to help families and children succeed in moving forward into two households.

In reviewing various state statutes, Alaska’s dissolution of marriage statute is well-crafted and would be easy to borrow. Equitable distribution in Alaska’s family law statute includes the following provision for determination of the fate of pets: “[I]f an animal is owned, for the ownership or joint ownership of the animal, taking into consideration the well-being of the animal.”^[39] Florida should adopt the model of Alaska’s law with its specific provision to determine the well-being and fate of the family pet when that is an issue in a dissolution action.

Domestic Violence

It is estimated that one in three women in the U.S. have experienced some form of abuse by a domestic partner.^[40] With nearly 80% of U.S. households owning at least one pet, it is not surprising that many victims experience the added trauma of seeing the animals they love and consider family members victimized as well.

The link between violence toward humans and animal cruelty is well documented. There is a strong correlation between domestic violence, child abuse, elder abuse, and animal cruelty. A 2017 study found that 89% of women who had companion animals during an abusive relationship reported that their animals were threatened, harmed, or killed by their abusive partner.^[41] Abusers recognize the emotional bond between people and their animals and exploit this bond to exert control over their victims, by threatening harm to the pet if the victim dares to leave. Sadly, this fear tactic often works.^[42] Across various surveys, between 18% and 48% of battered women delay leaving a dangerous situation out of concern for their pet’s safety.^[43]

Accordingly, legislatures in several states have recognized the connection between domestic violence and animal abuse. Statutes have been enacted that allow protection of a pet to be included in injunctions for protection against domestic violence. For example, Vermont has a domestic abuse statute that includes family pets. The statute explicitly provides guidance in order to protect a family or household member from domestic abuse and includes “an order concerning the possession, care, and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.”^[44]

California’s Domestic Violence Code provides even more detailed and greater protections for animals than the Vermont statute. It states:

(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or minor child residing in the residence or household of either petitioner or respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.^[45]

In Placey v. Placey, 51 So. 3d 374 (Ala. Civ. App. 2010), an Alabama appellate court went even further. The appellate court gave broad discretion to the family court judge who awarded permanent ownership of the dog under a protective order, even though the Alabama Protection from Abuse Act (PFAA) made no mention of animals, and the distribution of personal property was not a stated purpose of the statute.

In November 2007, Alabama resident Laurie Placey filed a protection from abuse (PFA) petition under the PFAA, codified at Ala. Code 1975, §30-5-1, in the Family Court Division of the Jefferson Circuit Court. Laurie alleged her 28-year-old daughter, Jill Placey, committed several acts of violence against her and that Jill had mental-health issues.^[46] Before the motion could be heard, while Laurie was walking Preston, her daughter’s fiancé forcibly took Preston from her.^[47] He placed Preston in a car in which Jill was waiting and drove away. After making extensive findings, the trial judge ordered Preston be returned to Laurie. The trial court granted Laurie an injunction and Jill was prohibited from coming within 500 feet of her parents’ residence. Jill was ordered to refrain from having any contact with Laurie.^[48]

Jill appealed the trial court’s decision regarding Preston arguing, among other things, that the court did not have authority to determine the permanent disposition of personal property pursuant to a PFA order. In its decision, the appellate court noted that the PFAA was to be liberally construed “to assure victims of domestic violence the maximum protection from abuse that the law can provide,” and the court was given broad power to “[o]rder other relief as it deems necessary to provide for the safety and welfare of the plaintiff….”^[49] “[I]n order to protect the mother and to effectuate the no contact provisions in the PFA” after Jill’s fiancé forcibly removed Preston from Laurie’s possession, the trial court was allowed to definitively determine the ownership of Preston, and the trial judge’s order was affirmed.^[50]

What is particularly noteworthy about the Placey decision is that the appellate court included in its opinion consideration of the best interests of Preston. The trial court’s judgment included explicit findings that Preston “had always lived with the family, the mother was primary caretaker for the dog, the mother and father paid for all the dog’s veterinary bills, and if the dog stayed with the mother, the dog would continue to live in the same home with a yard, whereas the daughter lived in a hotel room.”^[51] In its five-page opinion, the appellate court upheld the trial court’s consideration of the best interest of Preston in determining that Laurie was Preston’s true owner.

In stark contrast to Placey and laws in other states, such as Vermont and California, Florida law makes no provision for the protection of pets in cases involving domestic violence, nor does it give Florida judges the broad powers that enabled the Placey court to fashion a remedy not specifically provided for in the Alabama PFAA. Florida’s domestic violence statute, F.S. Ch. 741, includes a reference to the “family pet” and “violence,” but it does not protect the pet. Pets are mentioned only as a factor in determining a reasonable cause for danger against a person:

In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of domestic violence, the court shall consider all relevant factors alleged in the petition, including…(4) whether the respondent has intentionally injured or killed a family pet.^[52]

To stop the pattern of violence in which pets are too often victims alongside other vulnerable family members, it is time that Florida amend its domestic violence statute to expand protection from domestic violence to include our family pets. Chapter 741 should be amended to allow judges broad discretion to include protection of a pet in an injunction for a protective order, similar to the California Code.

Conclusion

In the past 10 years, the Florida Legislature has made major changes to family law statutes so that they “fit the people they are meant to serve.” Significant changes include permitting same-sex marriages, expanding fathers’ rights, and routinely instituting 50/50 timesharing.^[53] Florida now has explicit provisions for relocating parents and children.^[54] The law has also developed parenting plans that include children’s electronic communications with parents.^[55] In 2016, the Collaborative Law Process Act was implemented to provide a mechanism for resolution of family disputes through a voluntary settlement process.^[56] Additionally, in 2018, to address the special needs of our deployed military parents, the “Uniform Deployed Parents Custody and Visitation Act” was enacted.^[57] Moreover, the Florida Legislature amended family law statutes to remove terms such as “primary” and “secondary” parent and “custody.”

Now is the time for the legislature to expand our dissolution of marriage and domestic violence statutes by giving family court judges greater legal authority over the family pet. There is a need and demand for household pets to be given specific consideration in divorce proceedings and provided legal protection in cases involving domestic violence and abuse. As the Vermont Supreme Court noted: “Pet owners love their pets and their pets love them back.”^[58] Our laws should protect that bond.

In summary, it is worth quoting New York judge Matthew J. Cooper again. “If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, who gets to stay in the Hamptons house instead of the Aspen chalet, there certainly is room to give real consideration to a case involving a treasured pet.”^[59] We urge our legislators to expand the law to meet the needs of the people they serve and provide their cherished pets special consideration under Florida law.

This column is submitted on behalf of the Animal Law Section, Matt Dietz, chair, Ralph DeMeo, editor, and Gregg Morton and Michelle Ballard, special editors.