Wednesday, September 24, 2014

Best interests of the dog

I frequently complain about the BIOTCh, but this case is so ridiculous it sounds like a joke. UCLA law prof. Eugene Volokh writes:
Generally speaking, family courts have been quite reluctant to consider “pet custody” arguments; they much prefer to treat pets as property, to be allocated as part of a property settlement (like a car or a house), than as akin to children, for whom a custody decision should be made. But Hamet v. Baker (Vt. Apr. 25, 2014), from the Vermont Supreme Court, essentially endorses a “best interests of the dog” standard, much like the best interests of the child standard used in custody cases, albeit in the context of a property division. (The court also endorses consideration of whether the dog was one spouse’s property before the marriage — mentioned in a passage that I exclude from the excerpt — and the emotional connection between the dog and each spouse, but those seemed to be equally applicable, or equally inapplicable, in this case, as they would be in many cases.)

I wonder, though, whether the court’s decision was really based on any objective evaluation of the dog’s best interests (or how that could be determined, short of cases of outright abuse or neglect), as opposed to the judge’s personal view of how he feels a dog should be treated. Read it yourself, and see what you think:
At the conclusion of the hearing, the court awarded the dog to husband. It found that either party would provide the dog with a good life. It gave a slight edge to husband because the dog is accustomed to the routine of going to the clinic every day. The court balanced that factor against the dog’s familiarity with the marital home, which the parties agreed wife would receive as part of the property settlement.

It found that husband “treats the dog like a dog,” while wife is more doting and treats the dog like a child. The court concluded that the dog would do better with husband’s balanced attitude towards the animal.
Of course the judge was applying his personal prejudices, with Vermont supreme court endorsement. It is like saying, "The boy is black, and the dad treats him more like a black boy while the mom treats him like a white boy, so I am giving custody to the dad."

The Vermont supreme court explains:
Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is final and generally not subject to modification….

An order of property division is final and not subject to modification. In contrast to enforcement of other kinds of property division orders, enforcement of an order requiring ongoing sharing of a family companion animal would require the power of modification, since the animal’s well-being in the context of changing circumstances could be a substantial factor in the analysis.

Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal.
The term "sharing of a companion animal" is only used by the animal rights crowd. It sounds as if the court really wants the authority to take over the best interests of the dog as if it were a human child.

Under the law, the dog is just a piece of property. The usual way to divide an indivisible property in divorce court is to give each party an option to buy out the other's interest. They should also have the opportunity to agree to a contract to share the property if they wish, as presumably a contract to share a dog would be enforceable with the possibility of a civil lawsuit. But the judge did neither of those things. He quite literally ruled in the best interest of the bitch.

Notice especially the court complaint about a lack of "legislative authority for the court to play a continuing role in the supervision of the parties". I say that the court should have no such authority over parents, either. The way I read the law, the judge is supposed to make a final child custody determination, and then the parents are supposed to go about their lives with full authority as parents.

Apparently not. Parents under the jurisdiction of the family court are like prisoners on parole, with some bossy judge having a continuing role in their supervision. I am talking about supervision of the parents here, not the kids. The only free parents are the single parents with sole custody.

This case is very revealing for its attitudes towards parents and dogs. It also helps convince me that the system is not reformable. Do any politicians, judges, or other authority figures even object to the family court exercising a continuing role in the supervision of parents? We are doomed.

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