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Friend of Court Brief: Animal Defense Fund

Friend of Court Brief: Animal Defense Fund

Pets are a sepecial category of property


The document below was filed by the Animal Legal Defense Fund as a Friend of the Court briefing related to the Bennett v. Bennett case on the legal status of pets during divorce.




Attorneys for Amicus Curiae





Dog Lover,  Plaintiff, v.  Dog Lover’s Spouse, Defendant.

 Index No. .: 00-472




      This is not a typical custody case.  It does not involve a child, and it does not involve an incompetent adult in need of a caretaker because she is unable to make important decisions about her health and safety.  But it does involve the custody of a living, feeling being with an undisputed physical and emotional life and consciousness, who is unable to make important decisions about her health and safety, and who is dependent on one or more adults as her caretaker.  Just as family law courts consider the interests of the wards before that bar, courts have been considering the interests of dependent animals in reaching decisions about their custody.  Here, this Court should consider Rafiki’s interests, not because of sentimental attachment but because prevailing legal authority mandates that treatment.  This brief sets out the basis for this Court’s jurisdiction over the issue at bar -- Rafiki’s placement and custody.


      The Animal Legal Defense Fund (ALDF) submits this brief as amicus curiae, to assist the Court in its determination of this custody dispute involving a nonhuman; this is a situation which is occurring with increasing frequency across the country.  ALDF is a national, nonprofit organization of attorneys and supporting members that specializes in the analysis of legal issues affecting nonhuman animals and the advancement of a just treatment of animals within our legal system.  We urge this Court to include in its consideration of the instant action, the needs and interests of Rafiki, the [fill in description, e.g., two-year-old dog] whose placement the Court is being asked to determine.



      ALDF brings to this Court an unparalleled collective experience and education provided by more than twenty years of litigating and analyzing legal issues concerning the law as it pertains to animals.  ALDF has been involved in every aspect of the field of animal law, but most notably here has been involved in litigation and development of legal theory addressing the evaluation of nonhumans (both in pecuniary and nonpecuniary terms) by the courts.  ALDF and its member attorneys have been involved in many cases involving the exact issues faced by this Court.  They have analyzed these issues in a wide range of factual circumstances and under the laws of many states.


      Since the Court’s determination here requires appreciation of the exact legal areas in which ALDF has toiled for years, ALDF is in the best position to provide exceptional assistance to the Court in reaching its decision.


The unique Nature of Animals Requires Special Consideration Of Their Interests.

      While in the most hypertechnical sense Rafiki is legal “property”, that semantic status is not determinative of the Court’s decision.  The “property” label carries many different connotations in the courts.  This type of living, breathing, and feeling property has always been treated uniquely in the eyes of the law.  As set out in more detail below, the extensive protections afforded nonhumans under the law of every American jurisdiction mandate special consideration of issues concerning those beings under our care.  Thus such treatment be accorded to this Court’s determination -- which will affect Rafiki for the rest of her life.  Undisputed and consistent public policy and positive law mandate that Rafiki’s living conditions and caretakers can no more be decided by a reference to simple notions of property ownership than can that of a child for whom this Court might be asked to make a custody determination.


      As explained in the following sections, treatment as property neither denies nor impedes a fair judicial appraisal of the best placement for a dependent companion animal, with full evaluation of the needs of the animal and the best permanent home for her.


The “Property” Designation Is Simply Shorthand To Describe A Bundle Of Rights.

      Characterization as “property” does not depend on the inherent nature of the property described; instead, it simply describes the basic concept of the “bundle of rights” an owner maintains in property.1  For example, the California Supreme Court has explained:


The term “property” is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value.


      Further, neither value nor marketability determine the property designation.  Instead, as the Georgia Supreme Court recognized:   


Anything to which a person may hold a legal title is property, whether it has any market value or not.  It may have intrinsic value, but not exchangeable value.  It may serve a useful purpose and yet be unsalable and unexchangeable.  No one may want it, or have the use for it, except he who possesses it, and yet to him it may be a thing of value, that is, of intrinsic value, something that can be utilized in the accomplishment of his purpose or the attainment of his desire.  What do we mean when we say that a particular, visible, tangible thing is the property of the designated person?  Do we necessarily mean that it is something which he can sell in the market or exchange for something else?  We do not think so.  May not even an old letter, a faded photograph, or a lock of hair, treasured because of the associations and memories which the mere sight of it invokes, be the property of the person who possesses, treasures, and cherishes it, although no one else would care to possess it or give anything whatever in exchange for it?


      Since “property” is just a bundle of rights, courts utilize the designation in a myriad of contexts, applying the term both to tangible and intangible interests.  See, e.g., Trademark Cases (United States v. Steffens), 100 U.S. 82, 92 (1879) (trademark rights); Allied Investment Corp., 731 A.2d at 965 (stock certificates); In re Echo Enterprises, Inc., 324 S.E. 2d 312, 312 (S.C. 1984) (hunting and fishing rights); Golden v. State of Cal., 133 Cal. App. 3d 640, 645 (1955) (liquor license); Stallinger v. Goss, 193 P.2d 810 (Mont. 1948) (same); Deggender v. Seattle Brewing & Malting Co., 83 P. 898 (Wash. 1906) (same); People v. Leyvas, 73 Cal. App. 2d 863, 866 (1946) (gas ration stamps); People v. Dunsworth, 56 N.E.2d 52, 55 (Ill. 1944) (same); Rest. 2d Judg. § 6, Comment 2 (chose in action).


      Courts apply the property designation to a variety of interests, and routinely recognize that different types of property have different types of interests.  Consequently, different claims and remedies are applicable, depending on the type of property in question.  For example, the United States Supreme Court has held the property interest in a trademark is “based upon the party’s right to be protected in the good will of a trade or business.”  Hanover Star Milling Co. v. D.D. Metcalf, 240 U.S. 403, 412 (1916), limited by statute as stated in Park ‘N Fly, Inc.  v. Dollar Park ‘N Fly, Inc., 469 U.S. 189 (1985) 12. Distinguished by, Explained by: Levi Strauss & Co. v. GTFM, Inc., 196 F. Supp. 2d 971, 2002 U.S. Dist. LEXIS 5947, 62 U.S.P.Q.2d (BNA) 1394 (N.D. Cal. 2002).  Because the exclusive right to a trademark is premised on the protection of a business’ good will, courts will protect the right to a trademark only in the “markets [to which] the use of a trademark has [been] extended.” Hanover Star Milling Co., 240 U.S. at 415-16 (imposing territorial limit on plaintiff’s use of trademark for flour); see also Application of Marriott Corp., 517 F.2d 1364 (Cust. & Pat. 1975) (registration may be territorially limited); Italian Swiss Colony v. Italian Vineyard Co., 158 Cal. 252, 257 (1910).


      Patents and copyrights, by contrast, are a different type of property which protect “the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.”  Trademark Cases, 100 U.S. at 94 (original emphasis omitted).  Because the purpose of patents and copyrights is to protect “novelty, invention, discovery, or any work of the brain,” the limitations on trademark rights do not apply.  Id.  Thus, unlike a trademark, patents and copyrights are valid throughout the United States, regardless of whether the holder does business in every state.


      Thus, even within the intellectual property arena, it is clear that the type of interest and type of property -- rather than the mere designation of something as property -- is determinative of the owner’s rights and remedies.  Put another way, the designation of something as “property” is meaningless without evaluation of the context within which the designation is used.  The property designation means only that the owner has a protectable interest.  It says nothing of the type of protection courts will afford to the owner, or the property itself, or what claims may be made and remedies had in disputes over the property.  Here, of course, the type of property at issue is not only living, breathing and feeling, it has enjoyed legislative and publicly-endorsed protections for centuries, as discussed below.  Logically, special considerations must be accorded to a dispute over the custody of this type of property.


Many Forms Of Property Have Protected Interests and Obligations.

      As discussed in the next section, nonhumans are protected by numerous state and federal laws.  Indeed, even inanimate objects and abstract concepts obtain significant legal protections.  Ships can be parties to lawsuits.  Corporations are considered separate legal entities – “persons” in the eyes of the law.  Erkenbrecher v. Grant, 187 Cal. 7, 9 (1921); see also Cal. Civ. Code § 14.3  Consequently, corporations are imbued with the following rights and obligations:


Corporations have the capacity to sue in their own name.  Friendly Village Community Ass’n, Inc. No. IV v. Silva & Hill Construction Co., 31 Cal. App. 3d 220, 224 (1973).

Corporations have constitutional rights.  First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 777-80 (1978) (freedom of speech under the First Amendment and due process under the Fourteenth Amendment) Distinguished by, Cited in Dissenting Opinion at: McConnell v. FEC, 157 L. Ed. 2d 491, 124 S. Ct. 619, 2003 U.S. LEXIS 9195, 72 U.S.L.W. 4015, 17 Fla. L. Weekly Fed. S 13, 2003 Cal. Daily Op. Service 10567 (U.S. 2003), Distinguished by: Courtroom TV Network LLC v. State, 1 Misc. 3d 328, 769 N.Y.S.2d 70, 2003 N.Y. Misc. LEXIS 982 (2003);

United States v. Martin Linen Supply Co., 430 U.S. 564, 575 (1977) (Fifth Amendment right against double jeopardy); Ross v. Bernhard, 396 U.S. 531, 532-33 (1970) (Seventh Amendment right to a jury trial).

Corporations must pay taxes.  Carmichael v. Southern Coal & Coke co., 301 U.S. 495 (1937).

Corporations can donate money to charitable and political organizations.  Cal. Corp. Code § 207(e).

Corporations can own property.  Cal. Corp. Code § 207(g).

Corporations can enter into contracts.  Cal. Corp. Code § 207(g).

      Like corporations, trusts – whether testamentary or inter vivos – also are treated as separate legal entities and given special legal status and rights.  Trusts have the following privileges and obligations:4


Trusts must pay taxes.  Cal. Probate Code § 16243, 21500 et seq.

Trusts can own property in their own name.  Cal. Probate Code § 15202.

Trusts can enter leases for real and personal property.  Cal. Probate Code §§ 16231-32.

Trusts can hold shares in a corporation.  Cal. Probate Code § 16234.

Trusts can maintain policies of insurance to protect the trust res.  Cal. Probate Code § 16240.

Trusts can borrow money.  Cal. Probate Code § 16241.

The trustee of a trust can maintain an action (and indeed has the duty to bring an action) to protect the trust res.  Triplett v. Williams, 269 Cal. App. 2d 135, 137 (1969).

Animals Have Always Been Considered A Sui Generis Type Of Property, Accorded A Myriad Of Protections.

      As the preceding sections illustrate, the property designation is just a semantic starting point, each type of property has its own set of factors which determine its treatment under the law.  Although property, the law has long recognized and codified that animals’ interests should be protected and considered.  The casebooks and statutory law are full of decisions and enactments directed at protecting the animals that live among us.  This body of law underscores the need for special treatment of animals in custody cases like that now before the Court.


Statutory Protection Of Animals

Animal Cruelty Statutes

      All fifty states and the District of Columbia have enacted animal cruelty laws, penalizing the mistreatment of animals.5  Twenty-five states treat some animal cruelty as a felony6; abandonment of an animal is a crime in eighteen.7 


      The very issue at bar here -- custody of nonhumans -- has already been addressed by many states, and is an inherent component of the law of every state.  For example, in nine states, individuals convicted of animal cruelty must forfeit custody of their animals.8 A related consideration is added in the several states that have permissive or mandatory psychiatric treatment and/or evaluation of individuals convicted of cruelty to animals.9  Presumably the result of these evaluations is a dual determination of (1) the person’s fitness to own the animal and (2) the animal’s health and safety under the individual’s care.  Indeed, some states actually prohibit individuals convicted of animal cruelty from owning animals in the future.10  The policy behind these laws is clear -- animals must be protected and placed only in homes that will promote their continued health and well-being.


Like the state legislatures, American courts take the cruelty laws seriously, upholding convictions for abuse of a wide variety of animals.  Boushehry v. Indiana, 648 N.E. 2d 1174 (Ind. App. 1995) (slitting throat of goose) Distinguished by: Hall v. State, 791 N.E.2d 257, 2003 Ind. App. LEXIS 1231 (Ind. Ct. App. 2003); Distinguished by, Followed by: Woods v. State, 768 N.E.2d 1024, 2002 Ind. App. LEXIS 803 (Ind. Ct. App. 2002)


; West Valley City v. Streeter, 849 P.2d 613 (Utah App. 1993) (gamecocks used for fighting); Commonwealth v. Barnes, 629 A.2d 123 (Pa. Super. 1993) (neglect of horses); Norton v. State, 820 S.W. 2d 272 (Ark. 1991) (failure to adequately care for goats and rabbits, causing them unnecessary discomfort); Tuck v. U.S., 467 A.2d 727 (D.C. App. 1983) (keeping puppies in unsanitary conditions in pet store); People v. Bunt, 462 N.Y.S. 2d 142 (N.Y. Just. Ct. 1982) (beating dog with baseball bat); Wilkerson v. State, 401 So. 2d 1110 (Fla. 1981) (torturing raccoon). 


Federal Animal Protection Laws

      National public policy, embodied in federal law, reflects the same concern over treatment of animals.  As of 1995 there were more than sixty federal animal protection statutes.  See Henry Cohen, Federal Animal Protection Statutes, 1 Animal L. 143 (1995).  These statutes, like those of the states, reflect an appreciation of both the value of animals and the importance of proper placement for them.  See, e.g., the Endangered Species Act, 16 U.S.C. § 972 et seq.; the African Elephant Conservation Act, 16 U.S.C. § 4201 et seq.  The federal statutes protect everything from marine mammals, Marine Mammal Protection Act of 1972, 16 U.S.C. § 3371 et seq., to the bald eagle.  Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq.  They protect animals at every stage, from birth, Lacey Act, 18 U.S.C. § 41 et seq., to capture, the Atlantic Tunas Convention Act of 1975, 16 U.S.C. § 971 et seq., and even through to the treatment and method in which they are slaughtered.  Humane Slaughter Act, 7 U.S.C. § 1901 et seq.  The message is clear -- federal law and policy are concerned with the treatment of animals.


National and Congressional recognition of the value of animal life is reflected in these statutes.  Custody was one of the main concerns behind the development of the Animal Welfare Act (“AWA”).  In detailed language and authorized regulations, the AWA expressly defines the custody and care that must be provided to research animals in federally-funded facilities.  Indeed, the AWA was enacted to “insure that animals intended for use in research facilities or for exhibit purposes or for use as pets are provided humane care and treatment.”  7 U.S.C. § 2131(1).  Under the AWA the Secretary of Agriculture must “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.”  7 U.S.C. § 2143(a)(1).  The Animal Welfare Act mandates that the standards include requirements “for animal care, treatment, and practices in experimental procedures to ensure that animal pain and distress are minimized.”  7 U.S.C. § 2143(a)(3)(A).  Congressional and agency views of “humane care and treatment” naturally stem from an assertion of jurisdiction over the custody and care of the subject animals.  Plainly, the health and safety of animals in custody is at the heart of the AWA.


      The Endangered Species Act is a further example of Congressional intent to oversee the protection of animals interests.  In that Act, Congress declared that “fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and to its people.”  16 U.S.C. § 1531(a)(3).  For this reason, “the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction.”  16 U.S.C. § 1531(a)(4). 


      Similarly, in the Marine Mammal Protection Act, Congress declared:


marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.


Courts Routinely Acknowledge Animals Must Be Treated Differently Than Inanimate Forms of Property.

The preceding sections demonstrate not only a legislative and societal respect for the value of animal life, but also a recognition that animals have interests of their own that should be protected.  The courts are in agreement.  Indeed, several have held that companion animals possess unique traits that must be considered when evaluating damages for their injuries.  See, e.g., McDonald v. Ohio State University Veterinary Hospital, 644 N.E. 2d 750, 752 (Ct. Cl. Oh. 1994) (“unique” role dog played in plaintiff’s life included in damages calculation); Distinguished by: Oberschlake v. Veterinary Assocs. Animal Hosp., 151 Ohio App. 3d 741, 2003 Ohio 917, 785 N.E.2d 811, 2003 Ohio App. LEXIS 853 (Ohio Ct. App., Greene County 2003)


      Zager v. Dimilia, 524 N.Y.S. 2d 968, 970 (1988) (“the traditional restriction in personal property cases that the cost of repair should not exceed the market . . . value of the property should not be applied in a case where . . . a living creature is involved”); Brousseau v. Rosenthal, 443 N.Y.S. 2d [Page number is missing here, it should be 285] (Civ. Ct. N.Y. 1980) (companionship and affection of companion animal provides should also be evaluated).


In Corso v. Crawford Dog & Cat Hospital, Inc., 415 N.Y.S. 2d 182 (Civ. Ct. N.Y. 1979), Questioned by: Oberschlake v. Veterinary Assocs. Animal Hosp., 151 Ohio App. 3d 741, 2003 Ohio 917, 785 N.E.2d 811, 2003 Ohio App. LEXIS 853 (Ohio Ct. App., Greene County 2003) the court faced head-on the notion of animals as a sui generis form of property:


The court must first decide whether a pet such as a dog is only an item of personal property as prior cases have held. . .  [A] pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.. . .  A pet is not an inanimate thing that just receives affection, it also returns it.




This decision is not to be construed to include an award for the loss of a family heirloom which would also cause great mental anguish.  An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection.  It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response.  Losing the right to memorialize a pet rock, or a pet tree or losing a family picture album is not actionable.  But a dog is something else.  To say it is a piece of property and no more is a repudiation of our humanness.


      The specific issue in this case has already been decided in many other courts.  Courts deciding custody issues are increasingly finding the interests of animals must be considered in deciding cases like this one.  Courts in New York, Maryland, and Texas have ordered shared custody or visitation of animal companions, based solely or at least partly on the interests of the animals at issue.  Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999); Assal v. Kidwell, Civil No. 164421 (Md. Cir. Ct., Montgomery Cty. Dec. 3, 1999) Could not Shepardize this cite;  it was not found on Lexis; Arrington v. Arrington, 613 S.W.2d 565 (Tex. App. 1981). 


      In Raymond v. Lachman, plaintiff and defendant had been roommates and plaintiff’s cat had lived with them.  The two separated and defendant felt the cat belonged with him.  Plaintiff sought relief to obtain permanent custody of his “property”.  The trial court first recognized the interests of the cat as a sentient, companion animal by ordering the parties to “work out a visitation schedule” because “it does not appear to be within the best interest of the cat to shift custody back and forth.”  Id.  The court then reversed itself, however, and awarded the cat to plaintiff under a straight property analysis.  Id. (Jan. 8, 1998).  On appeal, that ruling was reversed.  The appellate court based its decision on (1) the interests of the cat as a feeling individual who had “lived, prospered, loved and been loved” in the residence now occupied by the defendant alone and (2) “the cherished status accorded to pets in our society.”  Raymond v. Lachmann, 695 N.Y.S. 2d 308, 309 (1999).


      In Zovko v. Gregory, No. CH 97-544 (Arlington County (Va.) Circuit Court, Oct. 17, 1997), Could not Shepardize this cite;  it was not found on Lexis, Grady, a cat originally belonging to defendant Gregory, was cared for by Zovko while the two men were roommates.  See Brooke A. Masters, In Courtroom Tug of War Over Custody, Roommate Wins the Kitty, WASHINGTON POST, Sept. 13, 1997, at B1.  When the roommates separated and a custody dispute over Grady reached the courthouse, the court found “Grady’s happiness took priority. . . .  [Judge] Kendrick said he would decide ‘what is in the best interest of Grady . . .  From what I have seen, Grady would be better off with Mr. Zovko.’”  Id.


      The approach taken by the courts in Zovko and Raymond was not out of the ordinary, according to Gary Skoloff, Esq., author of New Jersey Family Law Practice, Editor-in-Chief of the Family Law Magazine of the American Bar Association and former chair of the ABA Family Law Section.  Mr. Skoloff is convinced that “ ‘judges consider pet custody a legitimate issue.  Many of the same arguments pertaining to child custody fit and no judge laughs at this.’”  Joan Lowell Smith, Pet Custody No Laughing Matter, N.J. STAR LEDGER, Mar. 9, 1997 (1997 WL 8052984). 


      Courts deciding cases involving animals other areas also have rejected a strict property analysis.  For example, the probate court of Chittenden County, Vermont set aside a provision in a will directing the executor to destroy any animals owned by the decedent at the time of his death.  Estate of Howard H. Brand, No. 28473 (Probate Ct., Chittenden County, Vt., Mar. 17, 1999) Could not Shepardize this cite;  it was not found on Lexis.  The court observed that other states repeatedly had found such a strict chattel treatment of decedents’ companion animals to violate public policy.11  The court recognized the similar approaches taken in animal cases outside the realm of probate law and found that “[c]ourts in other jurisdictions have also recognized the distinction between companion animals and other forms of personal property in landlord tenant cases, tort actions, and even divorce decrees. . . .”  Id. at 4. 


      Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. 1994) focused on the calculation of damages for the shooting of a cherished family dog.  In that evaluation, the emotive qualities of dogs was addressed.  “Scientific research has provided a wealth of understanding to us that we cannot rightly ignore.  We now know that mammals share with us a great many emotive and cognitive characteristics” -- characteristics which necessarily distinguish companion animals from chattels having no discernible interest of their own.  Id. at 378 (Andell, J., concurring).  Judge Andell continued:


The law must be informed by evolving knowledge and attitudes.  Otherwise, it risks becoming irrelevant as a means of resolving conflicts.  Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property.  The law should reflect society’s recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.


Scientific Research Establishes The Cognitive And Psychological Reality Of Animals’ Lives.

      Judge Andell’s opinion is thoroughly supported by both society’s vast experience, and our considerable scientific knowledge, of the interests of these individuals who -- though perhaps not possessed of minds equivalent to those of competent adult humans -- certainly possess a similar nervous system, experience physical sensations such as hunger and pain similarly, and have mental and emotional lives.  According to David O. Wiebers, M.D., professor and chair of the Division of Cerebrovascular Diseases and consultant in neurology and clinical epidemiology at the Mayo Clinic in Rochester, Minnesota:


The EEGs of animals are analogous to those of humans . . . This is not surprising given that the brain structure and other central and peripheral nervous system structures and circuitry, down to the cellular level, are analogous in humans and other animals . . . .  These structures include . . . sensory systems for pain and touch perception, vision, hearing, taste, and smell; and, in many cases, centers which mediate mood and personality. . . .


Other physicians and scientists have made similar observations about the minds of humans and other animals.  The eminent British neurologist Lord Walter Russell Brain (1895-1966) observed, . . . “I at least cannot doubt that the interests and activities of animals are correlated with awareness and feeling in the same way as my own.” 


David O. Wiebers, Healing Society’s Relationship with Animals, SUNRISE, June/July 1995, at 164, 165, 167.  Biologists and ethologists (i.e., experts in the study of animal behavior) likewise have established that mammals have their own needs and desires, including those of a social/psychological nature as well as the physical.  See, e.g., M. Bekoff and D. Jamieson, Reflective Ethology, Applied Philosophy, and the Moral Status of Animals, in 9 PERSPECTIVES IN ETHOLOGY 1-47 (1991); D. R. Griffin, ANIMAL THINKING (1984); C.A. Ristau ed., COGNITIVE ETHOLOGY: THE MINDS OF OTHER ANIMALS.  For this reason, an increasing chorus of scholars are urging the courts to give sentient beings like Rafiki the human and humane consideration they scientifically and physiologically deserve, in cases just like this one.13


      Custody decisions involving minors and incompetent humans are made on behalf of individuals who need care based on the courts’ determinations of what placement will best serve those individuals.  The determination is made by courts weighing pertinent factors, in an effort to promote physical and emotional well-being to the greatest extent possible.  As demonstrated here, those same concerns and principles are before the bar in custody cases involving companion animals.


      It is well-established that animals suffer emotional traumas (such as those from a bad home environment) in much the same way we do -- that is, that they exhibit a range of behaviors which reflect their personalized feelings.  For example, “[i]t is not unusual for a dog to show a mild behavioral depression or psychosomatic sign as a result of the owner’s departure.”  P. Borchelt, “Separation-Elicited Behavior Problems in Dogs”, in New Perspectives on our Lives with Companion Animals (A. Katcher and A. Beck, eds., 1983) (“New Perspectives”), p. 189.  These “obvious” and sometimes “physiological, somatic responses” are contrasted by a typical “greeting response” which may include short or extended exhibitions of emotion upon the owner’s return.  Of course, both sets of behavior are proof of the internal emotional life of animals.  The connection of this conduct to sensate life cannot be denied, and it should be addressed where it may be significantly (and permanently) affected by a judicial decision regarding custody.


      The emotional consciousness of animals is also demonstrated by the value they bestow on the humans with whom they interact.  Animals provide essential, effective health benefits to those of us in human–animal companion relationships.  By the mid-1980s, there was already considerable evidence indicating animal companions had the capacity to reduce the frequency of serious disease and to prolong life.14  In the late 1980s and early 1990s, researchers examined the independent effects of companion animals and other psychosocial factors on one-year survival after acute myocardial infarction.  Erika Friedmann and Sue A. Thomas, Pet Ownership, Social Support, and One-Year Survival After Acute Myocardial Infarction In the Cardiac Arrhythmia Suppression Trial (CAST), 76 Amer. Jour. of Cardiology 1213 (Dec. 15, 1995).  The researchers concluded the study provided "strong evidence" that companion animals, and dogs in particular, promote cardiovascular health independent of social support and the physiological severity of the illness.  Id. at 1217.  The report noted previous findings that companion animals decrease their human companions' anxiety and sympathetic nervous system arousal in response to stressors.  Id., citing to the following:  C.C. Wilson, The Pet as an Anxiolytic Intervention, 179 J. Nerv. Ment. Dis. 482 (1991); and Friedmann, The Role of Pets in Enhancing Human Wellbeing:  Physiological Effects, in Waltham Book of Human Animal Interactions, pp. 33-53 (I. Robinson, ed., 1995).  A similar study in the early 1990s found that people with animal companions had significantly lower systolic blood pressure and plasma triglycerides than those without animals.  Warwick P. Anderson, et al., Pet Ownership and Risk Factors for Cardiovascular Disease, 157 Medical J. of Australia 298 (Sept. 7, 1992).


the bond between humans and THEIR animal companions further demonstrates the need for consideration of rafiki’s interests here.

The preceding sections establish the basis for treatment of animals as a special circumstance, different from any other property, in cases involving dispute over their custody.  Courts considering issues surrounding animals have also been mindful of the undisputed personal relationships formed between humans and animals.  In a dissenting opinion in Nahrstedt v. Lakeside Village Condominium Ass’n, 8 Cal. 4th 361 (1994), Distinguished by questionable precedent at, Followed by questionable precedent at, Cited in questionable precedent at: Villa De Las Palmas Homeowners Assn. v. Terifaj, 99 Cal. App. 4th 1202, 121 Cal. Rptr. 2d 780, 2002 Cal. App. LEXIS 4361, 2002 Cal. Daily Op. Service 5971, 2002 D.A.R. 7497 (Cal. App. 4th Dist. 2002), Distinguished by: Garden Lakes Cmty. Ass'n v. Madigan, 204 Ariz. 238, 62 P.3d 983, 2003 Ariz. App. LEXIS 20, 393 Ariz. Adv. Rep. 9 (Ariz. Ct. App. 2003)



      Justice Arabian of the California Supreme Court examined the significance of animal companionship:


The value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation.  People of all ages, but particularly the elderly and the young, enjoy their companionship.  Those who suffer from serious disease or injury and are confined to their home or bed experience a therapeutic, even spiritual, benefit from their presence.  Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning.  In recognition of these benefits, both Congress and the state Legislature have expressly guaranteed that elderly and handicapped persons living in public-assistance housing cannot be deprived of their pets.  Single adults may find certain pets can afford a feeling of security.  Families benefit from the experience of sharing that having a pet encourages. 


Nahrstedt, 8 Cal. 4th at 390 (Arabian, J., dissenting); see also Bueckner, supra, 886 S.W.2d at 376-78 (Andell, J., concurring) (“courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members.  Indeed, for many people, pets are the only family members they have.”).


      A recent law review cited the type of facts upon which these courts have based their opinions:


In the United States, there is nearly one pet for every two Americans.  Further, approximately 124 million dogs and cats live in American households.  In one study, forty-five percent of dog owners reported that they take their pets on vacation.  Another recent survey revealed 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 fifty percent of pet owners would be ‘very likely’ to risk their lives to save their pets, and another thirty-three percent indicated they would be ‘somewhat likely’ to put their own lives in danger.  These statistics indicate that companion animal owners view their pets as family members, rather than as personal property.


William C. Root, Man’s Best Friend:  Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 Vill. L. Rev. 423, 423 (2002) (footnotes omitted).  


      The unique bond between humans and their animal companions always extends to the personalized interests of all involved.  During the 1980s, counseling for loss of animal companions increasingly was being recognized as an important human service.  Sandra B. and Randolph T. Barker, The Human-Canine Bond: Closer Than Family Ties?, 10 J. Mental Health Counseling 46, 54 (Jan. 1988).  Large veterinary medical centers such as The Animal Medical Center in New York City and Veterinary Hospital of the University of Pennsylvania employ full-time professionals to assist persons coping with the death of an animal companion.  Id.


      In a 1995 report by the American Animal Hospital Association, seventy percent of the respondents who formerly or then-currently shared their lives with animal companions said they thought of their animals as children.  Carol Marie Cropper, Strides in Pet Care Come at Price Owners Will Pay,  N.Y. Times, Apr. 5, 1998, at 16.  When asked to identify the one companion they would want on a deserted island, fifty-three percent listed a dog or cat.  Id.  Similarly, ten years earlier, ninety-nine percent of a survey’s respondents considered their animal companions to be a family member.  Barker, supra, at 46, citing to V.L. Voith, Attachment of People to Companion Animals, 15 Veterinary Clinics of North America 289 (1985).  See also Cain, supra (majority of survey participants considered their animal companions to be family members and described the animals' role in the family as "very important"); Cindy Hall and Elizabeth Wing, Pets Are Part of the Family, USA TODAY, March 1, 2000, at 9D; Dan Vergano, A Better Life: Love Me, Love My Cat, USA TODAY, Feb. 14, 2000, at 6D.  Many businesses now allow companion animals to accompany their humans to work.  Candee Wilde, IT shops let pets come to work (visited Nov. 11, 1999 and May 22, 2000), www.cnn.com/TECH/computing/9812/23/petsit.idg/; see also Phil McCombs, Steptoe & Johnson, Attorneys-at-Paw, WASHINGTON POST, Feb. 9, 2000, at C1 (companies allowing companion animals include Netscape Communications Corp., Excite Inc. and Auto Desk, Inc.). 


      As all of the foregoing affirms, for a major portion of society companion animals occupy the role of immediate family members -- individuals who are owed their own consideration when decisions are being made about their living situations.  As demonstrated here, there is no legal barrier to judicial recognition of these realities.  This Court should likewise take the interests of Rafiki into account when deciding the circumstances under which she will reside.



      This is not a typical custody case.  But it is a custody case in which this Court must make determinations about the health and safety of a sentient being in need of lifelong care.  The courts, the legislatures, science and society support this Court’s consideration of Rafiki’s interests in deciding this case.  The legal characterization of Rafiki as property does not change this.





By: Joyce Tischler

Attorneys for Amicus Curiae

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