CLARKSBURG, MD. — The hardest, trickiest part of her divorce, admits Jo Shoesmith, was figuring out what to do with Misha, Nike, Shay, Violet, Momma Kitty, and Cotton - the three dogs and three cats she and her ex-husband had adopted together in better years.
"The lead-up to the breakup was very rough. Especially for Nike, who became so nervous she would tremble and pace," says Ms. Shoesmith. "We did not want to put them though any more unnecessary stress."
The arrangement the two finally hammered out gave Shoesmith sole custody of the cats (with her former husband paying "cat support") and joint custody over the dogs. She and her ex, Martin Stephens, shuttled the mixed breeds between their homes in West Virginia and Maryland every other week and split all expenses.
When they separated in 1997, the concept of pet custody was, well, unusual. "I would tell people at the office I have to run to pick up the dogs from my ex, and I would always get a smile," Shoesmith says.
Today, however, custody arrangements between divorcing pet owners (or guardians, as many prefer to be called) are more common, and animal lovers are pressing the law to adapt itself to their new demands.
Dozens of law schools around the country - including Harvard, Georgetown, and Yale - offer animal law classes that have segments on pet custody. The Animal Legal Defense Fund has filed briefs in several divorce cases, urging the judge to consider the pet's interest, and at least two law firms in California have partners who specialize in the area.
"Certainly there is a giggle factor," says David Wolfson, a corporate lawyer in New York who also takes on animal-law cases pro bono and lectures on the subject at Harvard University. "But these cases point to a larger trend: This area of the law needs to change to reflect that people do form special bonds with their pets. If someone carried around a rock and felt an attachment to it, that would not be acceptable. But a pet is different. The law needs to start changing its terms."
On the law books, pets are viewed as personal property, much as the living room chaise longue, says Mr. Wolfson. This classification leads to a certain diminution of cases such as veterinary malpractice suits, in which damage awards pertain only to the monetary value of the pet but ignore the pet's emotional value, he says. But in the area of custody battles, many family law courts are increasingly recognizing, both in language and in rulings, that for many of America's 160 million-plus pet owners, animals are much more special than a sofa.
Indeed, lengthy and often expensive custody battles are taking place across the US to determine where Rover would be happier living.
Sometimes the battles get ugly. Take the case of Gigi - a pointer-greyhound mix living in San Diego - who captured national attention last year as her former guardians went through a difficult divorce using the dog, say critics, as a pawn. The joint-custody agreement wasn't working, each agreed, but both wanted to be the primary caretaker. The court brought in an animal behaviorist to do a "bonding study" (a minor flap erupted when it transpired that the husband had hired a different animal behaviorist to prepare him for the official visit). It even entertained a "day in the life of Gigi" video proffered by the wife's divorce lawyer, which showed Gigi snoozing under her chair at work and playing on the beach. After months of negotiations and more than $150,000 in legal fees, the court awarded full custody to the wife.
In another case, Lynn Goldstein of Louisville, Ky., went to jail last May for 30 days for refusing court orders to turn over cats Beanie and Kacey to her ex-husband, Tom Nichols, and then lying under oath that they had run away. A private investigator hired by Mr. Nichols had videotaped her sneaking the felines over to a friend's office late at night. Today she is out of jail and has requested visitation rights.
To avoid such crises, a new website dedicated to the subject, www.petcustody.com (motto: "We're family too"), allows engaged couples to download pet prenuptial forms, and recommends that people get their affairs in order early. "Always, always, always put clear, concise language in prenups that cover your pet," counsels the site. "Abuse, abandonment, homelessness, and possible euthanasia are real risks when families forget to protect their pets from life's most unpredictable circumstances."
"We spend an increasing amount of time with our pets in today's world and form deep relations with them," says Nancy Peterson of the Humane Society of the United States. More people marry at a later age, wait to have children, or decide not to have them at all, she notes. Similarly, more people move away from their parents, and a growing number of them get divorced. "Pets are sometimes the one constant in our lives," she says. "Wanting to protect that bond and find the best solution for the pets and ourselves during a divorce or separation is only natural."
Five years after Stephens and Shoesmith formalized their divorce (complete with a section on the animal arrangements), circumstances have changed. Violet the cat has died, as have Nike and Shay. Differences in their "parenting" styles have been addressed, says Shoesmith, and each is now complimentary of the other's care for the animals.
Whereas they used to meet for the handoff at a halfway point between their homes - conducted the transfer as if it were a "shift change at a hospital," Shoesmith recalls - today the former couple are just as likely to drive all the way over to each other's home. The custody setup has worked, they say, to the benefit of all.
"When you come home from a handoff, the house feels empty, lonely," says Mr. Stephens as he begins collecting the harness, leash, dog bowl, and medicine he will pass on to Shoesmith when Misha is transferred later in the day.
"But we both felt that having both guardians in the picture meant we could take better care of the dogs. It has been for the best."