All Emma wants is to see her baby. Not even half the time, or at weekends, or in the holidays. The odd walk in the park would do, or a day at the beach. Emma misses her. She thinks about her all the time. She wonders if Luna has forgotten about her and, if she has, whether that’s for the best. The thought of Luna thinking that Emma abandoned her breaks her heart.
The last time she saw Luna was in mid 2021. Emma, who is in her 30s and works in social care in the south-west of England, travelled to where her ex lives, to see her. “She was so happy and excited to see me,” Emma says. “It was lovely. But he wouldn’t let me see her by myself.” They spent an hour together and as they were saying goodbye, Emma told Luna how much she loved her. Afterwards, Emma sat in the car and cried.
Emma never planned to go to court. It was her ex who first suggested speaking to a solicitor. It was during one of their fraught phone calls. Emma begging to see Luna; her ex telling her that it was in Luna’s best interests for them to part ways and move on. His voice was so cold. Emma barely recognised her boyfriend of six years.
So now, the lawyers are involved. “I never thought we’d get to the point of having to go to court,” Emma says. She estimates that she has spent more than £7,000 on legal fees. She is terrified that things might not go her way. “One of my biggest fears with the court,” says Emma, “is that the judge can order us to sell Luna, if they can’t see any other resolution.”
The judge has this power because Luna is a golden retriever and Emma and her ex bought her together, meaning that if they sold her, both would receive an equal return on their shared property. But Emma won’t let it come to that. “I’d rather Luna be with him than sold to someone we don’t know,” she says. “I know that with him she is loved and looked after. And that is the most important thing.”
Emma is one of a growing number of people going to court to negotiate custody arrangements not of children, but of pets. It’ s a trend that started in celebrity circles: TV presenter Ant McPartlin and makeup artist Lisa Armstrong continue to share custody of labrador Hurley after their divorce, while Selling Sunset’s Mary Fitzgerald and Jason Oppenheim share dogs Niko and Zelda, even throwing the animals a joint birthday party in season four of the Netflix reality show. This trend has percolated out to the general public. “There’s been a constant increase in inquiries,” says Gita Duggal of law firm Richard Nelson LLP. Duggal has handled 20 pet custody cases since 2020. “Probably about 30% of my divorce cases will involve a dispute about pets,” says leading family and divorce lawyer Vanessa Lloyd Platt. With the introduction of no-fault divorce in April 2022, cases are predicted to surge: Lloyd Platt has 30 clients ready to issue proceedings against their partners when the law changes.
In the US, a 2014 survey from the American Academy of Matrimonial Lawyers found that 27% of respondents had seen an increase in pet custody disputes in the previous five years. When Boston lawyer Jeremy Cohen opened his practice in 2016, pet custody was barely on his radar: now it’s 50% of the caseload and the firm has 25 cases in court. “We’re getting three or four calls a day about pet custody issues,” he says. Accordingly, he’s rebranded: his firm is now called Boston Dog Lawyers.
The Covid-19 pandemic has “been a divorce lawyer’s blessing” Lloyd Platt says crisply. During the pandemic, her firm would often receive calls from clients sitting in their cars, because it was the only place they could go to speak privately. Clients were sometimes more anxious about what would become of their pets than their children. “They have no problem organising who will live with the children,” she says. “But when it comes to the pets, they insist they want the dog. It’s bizarre.”
In the UK, “pets are considered chattels, meaning they effectively have the same status as a fridge-freezer or dishwasher”, Lloyd Platt says. She advises couples to sign a “pet nup” before acquiring a pet, to determine what would happen in the event of a split. For those who don’t have such forethought, matters are dealt with in the divorce courts if a couple are married, or in the small claims court if they are not. Judges award the animal to whoever can prove ownership of it. “If you didn’t pay for it,” Lloyd Platt says, “you don’t have a leg to stand on.”
If one party paid for the animal but another party paid for all of its costs, judges may adjudicate on where the pet is best placed after hearing testimony from animal experts. If the couple paid for the animal jointly, judges may insist one party buys out the other party, they split custody of the animal or, in extreme circumstances, sell the animal and split the proceeds. Most US states follow a similar model.
Because pets are viewed in most jurisdictions – with the recent exceptions of Spain and France – as property, not sentient beings, disputes over pet custody may not always be resolved in the best interests of the animal. “When he came to me he was infested with fleas,” Jane says. “He had worms and emphysema, because people used to smoke near him. He was also burned, because someone had dropped boiling water on him.”
Jane is referring to her 10-year-old labrador Clyde, who originally belonged to a relative. When they moved away, she ended up looking after Clyde for four years. “I spent thousands rehabilitating him,” she says.
But in March 2016, Jane’s relative requested Clyde back. “It was a slap in the face,” she says. Last year, the relative served her with court papers. For Jane, sending Clyde back was an impossibility. (By now, she was living on a different continent.) “It would be the end of Clyde’s life,” she says. “I would be sentencing this dog to death. Because he’s old, he has a heart condition.”
Jane spent £13,650 fighting her relative in court. “I was so stressed,” she says. “I lost a significant amount of hair.” Her concern was that the court would award the animal to her relative under property laws, despite the fact that her lawyers highlighted Clyde’s poor condition when he arrived with her. But the court ultimately ruled in Jane’s favour, not because it was in the dog’s best interests to stay with her but because her relative did not reclaim their property within a reasonable period of time. Jane is relieved that Clyde will see out the rest of his days by her side, but feels passionately that the law needs to change.
“A dog is not property,” she says. “Property is a table and chairs. We need to consider where the dog is best placed.” Her view is shared by many animal rights advocates, who believe the law needs to consider welfare issues as much as legal ownership. “Custody absolutely has to be based on what is in the best interests of the pet,” says Dr Samantha Gaines of the RSPCA. Many agree: a third of Americans believe animals deserve the same rights as people, according to a 2015 Gallup poll.
But not all welfare issues are as clearcut as a dog with fleas. Animal behaviour can be difficult to interpret, and individuals can sincerely believe they are acting in the best interests of the pet, when in fact they’re causing significant harm. “I’m not going to sit here and tell you that I’m not to blame,” says Sham Ganglani, a 46-year-old product manager from Rhode Island. “I am just as much to blame as my ex-wife. We were in this together, and we didn’t recognise what was happening. It was hard to see what was best for the dogs.”
In 2016, Ganglani and his wife separated, divorcing two years later. At the time, they had two dogs: a mutt called Atticus and a German shepherd called Radley. “It seemed horrible to separate them,” he says, “because they were great friends.” So, as part of their divorce agreement, they decided to share both dogs, shuttling them between their houses every week. “Over time it didn’t work out for Radley,” Ganglani says. “It disrupted the routine for him.” There were warning signs: Radley became extremely protective, and Ganglani was so worried he hired a dog trainer for advice.
In November 2019, Radley bit a child at Ganglani’s ex-wife’s house. Ten days later, Radley bit Ganglani’s girlfriend’s son, who needed 17 stitches. A horrified Ganglani revoked his rights to Radley and his ex-wife agreed to take him full-time. But they continued to share Atticus, and in May 2020 Ganglani discovered a large gash on Atticus’s ear. His ex-wife admitted that Radley had attacked Atticus. “I was done,” Ganglani says. “I was not going to send Atticus back into a situation that was dangerous.”
His ex-wife took him to the family court, holding him in contempt of their divorce agreement, but before the case could be tried, Radley bit an 18-year-old dog groomer. Afterwards, Ganglani’s ex-wife agreed to drop the case. “It haunts me,” Ganglani says. “I feel responsible for what happened. We put Radley in a situation where he was not set up for success.” Given a do-over, Ganglani would not have split custody of the dogs. “People should figure out who will take the dog and make a clean break,” he says.
Gaines urges couples considering shared custody to think carefully. On balance, “dogs are better able to cope than cats”, Gaines says, but not all dogs can be regularly moved. Cats are highly sensitive to changes in their environments and do not travel well. When sharing custody, it’s important that both owners are consistent in how they treat the animals. Ganglani believes that the discrepancy between his and his ex-wife’s approach is, in part, what unsettled Radley. “He was confused,” he says. “With me things were a certain way, and with her it was different.”
If owners do proceed with shared custody, they should watch for stress indicators in their animals: for cats, this may be increased spraying, urinary tract infections or hiding. For dogs, owners should assess whether the animal appears more frightened than usual and frequently presents with a lowered body posture and tail between their legs. “Shared custody arrangements absolutely have the potential to go very wrong,” Gaines warns.
Of course, not all shared custody agreements will traumatise the animals involved. But they can prove distressing for their owners. “I can feel myself getting anxious and short of breath,” Rob says. “This sense of panic comes on.” Rob is describing how it feels when he meets up with his ex to hand over their shared dog. They broke up in August 2021, after a long relationship, against Rob’s wishes, but agreed to share custody, swapping the dog between them every few weeks.
Seeing his ex so regularly is excruciating. “We were together for a long time,” Rob says. “You can’t just turn these feelings off. But I have to put my emotions aside because I love that dog to bits.” Every handover, Rob cries. “Every single time. I want to stay strong and put a brave face on,” he says, “but my ex is in front of me, and he’s taking my baby.” To add salt to the wound, Rob’s ex has a new boyfriend and they often post pictures online with the dog. “When I see the dog with them,” Rob says, “it feels as if they’re trying to replace me.”
Rob knows that seeing his ex so regularly is stopping him moving on. He has considered giving up the dog. He knows his ex loves him as much as he does, and the dog would be well looked after. “I may have to make that decision further down the line,” he says. “I’m not ruling it out. For my sanity. Maybe I do just have to let it all go and start again from scratch. But that’s a lot of your life to be letting go.” He sobs. “Your partner that you had for years, and the dog you had for over half that time.”
What makes someone like Rob so determined to maintain custody of a pet, even at the expense of his emotional wellbeing? “People say that a dog isn’t a child,” Rob says. “But when you don’t have a child, you don’t have anything else to compare it to. I do treat him like a child.” Emma does not plan to have children. “Some people can’t fully understand,” she says of Luna, “but the love I have for her is like the love a mother would have for a child. I know she’s not a child in the eyes of the law. But that’s the best way I can explain it.”
In this, she is not alone. “The total fertility rate has been declining every year since 2012,” says Prof Shireen Kanji of Brunel University. “Most demographers are really worried about falling fertility and what this means for the functioning of ageing societies and for the economy.” It’s not hard to see why: across the UK, house prices have quadrupled since 1990, while childcare costs run to hundreds of pounds a week. “There is a clear link between housing and children,” Kanji says.
But this shift is about more than just economic change. “Animals have come to take more of a role in our emotional lives,” says John Bradshaw, author of The Animals Among Us. He points out that Britons have always loved animals, but that this affection has intensified as a new cohort of people embraced pet ownership during lockdown. “There are an extra 3.2 million pets in the UK,” he says, “and people are getting pets for the first time, who haven’t experienced that love of forming a relationship with an animal before.”
But the issue is that pets are not children. “Pets are often seen as members of the family,” Gaines says, “and the same way we’d look at sharing custody of children, you’d share an animal. But the difference is that you can’t explain to an animal why you’re sharing custody.” Bradshaw agrees. “A child’s brain works in a different way from a cat or dog’s,” he says. “It needs to be considered from that animal’s perspective. Not just as a cat or dog: as that cat or dog.”
Animals are not humans, even if we sometimes feel they are, and pet custody battles are too often about the wellbeing of owners rather than their beloved companions. Emma’s anguish will end one way or another this month when she has her final court hearing. Until then she waits, and tries not to imagine a future in which she will never feel Luna’s insistent, nuzzling embrace. “I am terrified,” she says. “But I’ve tried not to think too much about losing. I would struggle to get through the day. I don’t want to think about life without Luna. It’s too difficult.”
Some names have been changed.
July 16, 2022 at 04:09PM Sirin Kale