Since Jan 1., judges in Illinois have been directed to consider the well-being of the family pet in divorce cases. Alaska passed similar legislation last year.
In the past, courts treated and divvied up pets just like cars or paintings or any other marital property. Courts awarded custody based on the ownership of the pet, and took into account factors like who bought the animal and paid for its medical care, without consideration of the needs of the animal. Now judges can consider various circumstances in their deliberations, such as the existence of a yard or a spouse’s busy work schedule.
That slight shift represents a major change in emphasis that could soon ripple through the nation’s courtrooms, bringing with it a legal recognition that pets have interests independent of their human owners.
American jurisprudence intersects with animals in a wide variety of situations. There are veterinary malpractice cases, disputes over “no pets” condo policies, cases involving injury or wrongful death, and anti-cruelty laws protecting animals, to name a few.
And animals are a booming area of the law. In 2000, only nine law schools had animal law courses, according to the Animal Legal Defense Fund. By 2015, there were 151.
The history of pets and the law has been contentious. In the 19th century, some courts did not recognize the property value of dogs and cats, since they were neither food nor working animals. Over time, courts began to appreciate the value of pets, if only at market value.
That’s starting to change. “A pet may be property, [but] is no longer treated solely as property,” says Grace Dickler, presiding judge in the domestic relations division of Cook County, Ill., circuit court. “The law is slowly moving in the direction of acknowledging the pet is different from other property and that the welfare of the pet is to be taken into account.”
Anna Morrison-Ricordati, an animal law attorney in Chicago, is bullish about the shifting legal landscape in a nation with more pets than people. “The animals’ well-being is important because you are dealing with sentient beings able to think and feel and who have an interest in their own lives,” she says.
The Illinois law aims to manage what can often be competing interests. “In the balance, this walks the line fairly well, acknowledging that pets are not merely property, while not opening up a vortex of endless litigation where people lead with their feelings,” says Kevin Curran, a family law attorney. “Judges are not huge fans, in my experience, [of cases] that keep. . . coming back in the courts. It’s one of those paradoxes. A couple that needs a court order to split the dog once a week is absolutely a couple that should not see each other once a week.”
What happens in Illinois probably won’t stay there.
“It takes one state to be the first to set a path for others,” says Anthony Eliseuson, senior staff attorney for the Animal Legal Defense Fund. “Alaska was the first. Illinois quickly followed. You’ll see many other states following in the next couple of years.”
Elisa Orzac Shoenberger is a writer based in Chicago. She is the co-editor and co-founder of the new literary journal, The Antelope, and a regular contributor to Book Riot.