Separation, Custody, and Estate Planning Issues Relating to Companion Animals

[Reprinted with permission of the University of Colorado Law Review.]

Introduction

According to a recent survey, seventy-three percent of dog owners and sixty- five percent of cat owners consider their companion animals to be like a child or family member. [FN1] Even higher percentages agreed that companionship, love, and affection are benefits of animal ownership. [FN2] Think about the issue in another way. How many family photos do you see that include the family's dog or cat? [FN3] How many times do you hear someone referring to a dog or cat as his or her best friend, buddy, or baby? Despite the great affinity that a significant percentage of the population has for animals, U.S. law does not adequately protect the relationship and bond between humans and their animal companions.

Given the historical perception of animals as resources for humans, it is not surprising that the law does not reflect the current status of the human-animal bond. The relationship between humans and their companion animals has developed from one focused on utility to one primarily of companionship. [FN4] Companion animals play a "progressively more important role within the family" today than in years past. [FN5] We name our companion animals, include them as participants in social ceremonies and speak to them as if they are humans. [FN6] For example, as many as sixty-three percent of companion animal owners say they celebrate their pets' birthdays. [FN7] Moreover, as discussed below, companion animals take on the role of children in some households. [FN8]

If you are in the public eye, including a companion animal in your life can be a political asset. [FN9] Dogs are especially valuable in showing a politician's humanity. [FN10] Companion animals, like children, indicate that a person is warm, domestic, and approachable. [FN11] In fact, at times, the companion animals in the White House receive more media attention than the human residents. Take for example the publication of a book "by" Millie, President George H.W. Bush's dog, and the reported conflict between President Clinton's dog, Buddy, and the family cat, Socks. [FN12]

Significant scholarly works consider the impact of companion animals on human health. [FN13] Recent studies on the impact of companion animals on children indicate that having animals in the home actually decreases the risk of children developing allergies later in life. [FN14] Animals are good for the health of adults, too. Research shows that physical contact with companion animals has a calming effect and decreases people's blood pressure. [FN15] Companion animals are even used as part of the treatment for some types of mental illness. [FN16]

Given the benefits that animals confer on people, not to mention the affinity that develops for these "family members," [FN17] it is no wonder that a significant amount of time and money is spent on them. There are doggy day care centers and pet sitting services. [FN18] Special "dog parks" are available in many cities that allow dogs to run unleashed. [FN19] This relationship between humans and companion animals affects more than just day-to-day activities. Some people refuse to leave their animal companions at home when they go on vacation, turning instead to one of the many web sites dedicated to informing pet owners of hotels and other facilities that are pet- friendly. [FN20] There are even camps where humans and their dogs can go to train and bond together. [FN21] If it is necessary to leave a companion animal behind, boarding "retreats" provide color television and other amenities for the animals. [FN22] There is even a new airline that offers to transport companion animals in cabins, rather than in cargo compartments. [FN23]

Of course, dogs and cats are regularly taken to the veterinarian. [FN24] Today, veterinary medicine offers preventive care as well as treatment for major diseases. Laser surgery, CAT scans, and MRI's are among the many types of medical care available for animals. [FN25] Companion animals receive surgery to correct ruptured disks, kidney transplants, and chemotherapy to treat cancer. [FN26] In addition, holistic treatments are available as an alternative to traditional veterinary medicine. [FN27] Pet caskets and pet cemeteries provide a fitting end to a companion animal's existence if the medical treatment is unsuccessful. [FN28]

More generally, companion animals have a special status in the United States. It is not socially acceptable to eat cats or dogs or to wear a coat made of dog or cat fur. The visible mistreatment of these animals generally receives a high response from a significant portion of the public. [FN29] National organizations such as The Humane Society of the United States, as well as local welfare organizations, keep issues relating to animals visible to the population at large. There is no indication that the trend towards greater integration of these animals into families is going to end anytime soon. As such, it is clear that the current legal system has not kept up with the reality of the relationship between these companion animals and their human family members. [FN30] This article examines three significant events that may occur during the lives of companion animals and analyzes the weaknesses in the laws dealing with such events.

In this article, I first briefly discuss the domestication of companion animals, including the impact of anthropomorphism and neoteny on how animals are viewed in U.S. society. [FN31] Second, I review the current legal status of animals, including the change in language in some jurisdictions from "owner" to "guardian" to describe the human-animal relationship. Third, I consider the voluntary and involuntary separation of companion animals from their human families. Fourth, I examine custody issues in the context of the placement of animals after the divorce of the human family members. Finally, I analyze estate planning issues relating to companion animals.


I. Domestication of Canines and Felines

There is disagreement about the timing of the domestication of dogs. One study, using genetic evidence, indicates that dogs as we know them appeared between 60,000 and 125,000 years ago. [FN32] The ancestor of modern canines is believed to be derived in whole or in large part from a subspecies of wolf. [FN33] Archaeological evidence dates the human-dog bond back 12,000 to 14,000 years, with dog bones found in human graves. [FN34] There is evidence of dogs in Europe between 9,000 and 12,000 years ago, [FN35] as well as distinctive types of dogs in Asia, the Middle East, and Africa during the same time period. [FN36] Dog remains have been found in a cave site in Idaho dating back at least 8,000 years. [FN37] But knowing when humans and dogs met does not explain why they bonded.

Several theories attempt to explain the domestication of dogs. Generally these theories focus on the neotenous traits of domestic animals or postulate that the dogs were attracted to discarded food scraps of humans and were not driven away because they warned humans of other predators. [FN38] Dogs were bred for specific purposes including hunting, herding, pulling, and for their fur and meat. [FN39] Over time, the breeding of dogs became more formalized to better reflect societies' views of positive aesthetic and utilitarian qualities so that worldwide there are now somewhere between 450 to 850 breeds of dogs. [FN40] Today's "purebred" household pets were developed in the nineteenth century, as kennel clubs began registering breeds. [FN41] One commentator argues that dogs, especially miniature and lap dogs have been bred to emphasize their juvenile characteristics in order to conform to their social role as a type of a child. [FN42]

The domestication of the cat was relatively more recent. Most peg the date sometime between 4200 and 1000 B.C., with the African wildcat the probable principal ancestor of domestic cats. [FN43] One theory is that the cat was drawn to the large concentration of rodents that were attracted to long-term grain storage facilities in Egypt. [FN44] For more than two thousand years the cat played a pivotal role in Egyptian society, enjoying protections under the law and sacred status. [FN45] The cat spread first in Asia and then to Europe by way of Italy. [FN46] Their value as companions, mousers, or possibly even as items of trade, particularly with the arrival of shorthaired cats in the United States in the seventeenth century, helped spread this animal worldwide. [FN47]

Cats are not generally considered economically significant and instead act principally as companions. [FN48] Unlike dogs, domestic cats are relatively similar in size and weight with only minor distinctions by breed. [FN49] By the mid-nineteenth century, cat breeds show formalized distinctions from the natural domestic types that had previously been in existence. [FN50] Cat breeds are beginning to emphasize physical and personality traits other than color and coat differences. [FN51]

Anthropomorphism is the attribution of human characteristics to animals. [FN52] Although commonly seen, it is often considered to be a naïve approach to understanding animals and describing their behavior. [FN53] This is not a universally held view, however, and there are some indications that it may be more acceptable now to utilize anthropomorphic language to describe behavior. [FN54] By disparaging the use of anthropomorphistic language, the credibility of the idea that there is a commonality of meanings between animal and human life is undermined. [FN55] Indeed, studies show that people are more likely to attribute human characteristics to animals that they perceive as similar to humans. [FN56] The status of an animal as a pet (e.g., a cat or dog) was also a factor in establishing the attributes of the animal. [FN57]

The concept of "neoteny" is key to our perception of companion animals. Neoteny is the "retention of juvenile characteristics into adult years." [FN58] In domesticated animals, the most apparent neotenous traits are found in dogs and cats, which likely influenced the choice to domesticate them. [FN59] Through selective breeding, many types of dogs retain juvenile characteristics such as a short facial region, large brain case, and big eyes. [FN60] The perception of animals as juveniles begins in a child's infancy when stuffed toys and other playful images shape our understanding of other species. [FN61] Neoteny can have a mixed impact on the treatment of animals, however. While animals with neotenous traits may elicit a positive emotional response and protection, neotony also leads people to view such animals as helpless and lacking autonomy. [FN62]

Although the term "pet" was not used until the late 1500s, pet keeping has been practiced across many cultures throughout history. [FN63] From the ancient Egyptians, Greeks, and Romans to Native Americans and Polynesians, pets have long been a part of human societies. [FN64] Although pet keeping was initially the purview of the aristocracy in the Western world, by the mid-nineteenth century the practice had spread to the middle class. [FN65]

Domestication is just one piece of the puzzle of the changing human- animal bond. After all, many other animals have been domesticated, such as cattle, sheep and poultry. But these animals do not trigger the same emotional response in humans. Why, then, have attitudes about "pets" changed in the U.S.? One view considers three factors: historical circumstances, emotional orientation, and intellectual climate. [FN66] One of the most important historical circumstances that played a role in the changing American view of animals is the urbanization of America. [FN67] Animals in a predominantly rural society are viewed as being "ready-to-hand." [FN68] Essentially an animal's role is to be exploited as a source of food and other salable commodities. [FN69] Once people moved to cities, the relationship changed to one described as "simply there"--not necessarily something dealt with on a daily basis. [FN70] As animals, including farm animals, began to decrease in numbers in urban environments, [FN71] there was an increase in the number of animals kept as pets. [FN72]

Changes also occurred in the emotional orientation towards animals in America. [FN73] The development of this modern emotional orientation can be traced to both the anthropomorphization and neotenization of animals. [FN74] Another factor impacting the emotional orientation towards animals is the prevalence of images of animals and the wild as romantic and idyllic. [FN75]

The intellectual climate in the U.S. also influenced the modern perception of animals. [FN76] Prior to the general acceptance of Darwin's theory of evolution, animals were considered to be separate from humans. [FN77] In addition, in recent decades, there has been an explosion of philosophical thought on animals. [FN78] The general expansion of the conception of rights and right holders contributed to theories supportive of animal rights. [FN79] Historically based on welfare ideals, [FN80] the focus of animal rights thought now centers on the legal status of animals. [FN81] Finally, there are now more objective and scientifically acceptable methods to study animals, including methodologies that can measure the intelligence of animals. [FN82]

Perhaps the most radical and yet least controversial change in the perception of animals is their place in the human family. Indeed, companion animals are not just members of the family--they are often viewed as children. [FN83] The status of these animals as children is illustrated by their analogous treatment. [FN84] Like human children, companion animals are continuously cared for and protected from harm. [FN85] Similarly, the relationship between adults and children and adults and companion animals has changed from one of utility to sentimental objects of affection. [FN86]

The change in human relationship with companion animals is sometimes attributed to the industrialization, urbanization, and isolation of modern American society. [FN87] Other factors affecting the treatment of animals may include the affluence and materialistic values in U.S. society. [FN88] While other commentators argue about whether the current view of companion animals as a part of the family is wise, this paper takes as given this status and considers several problems that arise due to the disconnection between the status of animals as family members and their treatment in the legal system.


II. Current Legal Status of Animals

A. Property

The current U.S. legal framework treats animals as a form of personal property. [FN89] The common law traditionally affords people the legal right to own and control property. [FN90] Further, it supports the idea of "absolute" possession of property, but may restrict the use of personal property. [FN91]

The common law analyzed property rights in animals differently than other property rights because animals have the ability to move independently. [FN92] The focus in this analysis was on the classification of animals. [FN93] The law initially classified animals as either "wild" or "domestic." [FN94] A human could only obtain a qualified property right in a "wild" animal by taming or confining it, and if such an animal left the person's control, the individual lost the property right. [FN95] The ownership of a domestic animal, on the other hand, was not necessarily lost if the animal escaped. [FN96]

Companion animals, or pets, comprise a subcategory of domestic animals. [FN97] Whether an animal falls within this subcategory depends on the relationship between an animal and its owner. [FN98] Classification as a companion animal affords its owner more rights but will also likely subject that person to greater statutory responsibilities. [FN99] Some common statutory responsibilities for companion animals include licensing, vaccination, and confinement. [FN100] The justifications for animal licensing laws vary by jurisdiction, but many times the proceeds support the funding of shelters, vaccination enforcement, and educational programs. [FN101] If animals are licensed, enforcement agencies are better able to identify and reunite them with their owners. [FN102] Confinement and control of animals is justified by the need to control diseases or prevent animals from becoming nuisances or injuring people. [FN103] Individuals frequently contest statutes relating to companion animals, but such lawsuits generally fail. [FN104]

Some contend that animals should not simply be treated as another form of property. [FN105] One proposal that changes the property status of animals uses existing property laws. [FN106] Professor David Favre advocates a system that retains the concept of property ownership in animals for certain purposes while providing animals the status of "juristic persons." [FN107] The idea that living objects have "self-ownership" is an important premise within this system. [FN108] Under Professor Favre's proposal, animals would possess self-ownership for some purposes, with legal title remaining in human owners. [FN109] The human owner would adopt the role of a true guardian. [FN110]

Essentially, Professor Favre's system treats the relationship between an owner and animal similarly (but not identically) to that of the custodial relationship between a human parent and child. [FN111] The human guardian would owe duties towards animals based on existing anti-cruelty laws and analogies to the parent-child relationship. [FN112] Just as parents may not abuse children and must allow for mental development, provide medical assistance, and provide for a child's physical needs, a human owner must do the same if an animal had equitable self-ownership. [FN113] The animal would have its own legally cognizable interests that could be asserted against third parties. [FN114] The treatment of animals as legal persons is not beyond the scope of existing law but is beyond the scope of this paper. [FN115]


B. Language--Owner to Guardian

Given the law's current status and its accompanying history, the substantive legal treatment of animals may need to wait for the next generation of jurists and legislatures. In contrast, the language used in describing the relationship between humans and companion animals in statutes and codes is already under revision. Changes in statutory language have occurred in several locales and consist of changing the designation of the human responsible for companion animals. [FN116] At the forefront of the adoption of this new language was the city of Boulder, Colorado. In July 2000, the city revised its municipal code to replace the phrase "pet owner" with "pet guardian." [FN117] The California cities of West Hollywood and Berkeley followed in 2001 with similar changes to their city codes. [FN118] The drive to amend statutory language is not just occurring in the West. There are advocates pushing for guardian language in Chicago, Madison, and in other cities across the country. [FN119] Sherwood, Arkansas and Memonee Falls, Wisconsin have already revised their ordinances. [FN120] Although the alteration of the language from owner to guardian has primarily occurred at the city level, in July 2001, Rhode Island enacted a law relating to animals and animal husbandry that provides for "Guardian" to be used interchangeably with "Owner." [FN121]

Proponents of such statutory revisions assert that changing the language used to refer to these companion animals will help adjust people's perception of these animals from property to that of living beings. [FN122] Advocates claim that the new vocabulary will "encourage residents to see their pets as family members and not property." [FN123] The term guardianship connotes a greater sense of responsibility for companion animals and is seen as a way to "educate people that animals are individuals with interests and personalities of their own." [FN124] To advocates, "owner" is an outdated term and no longer represents the animal-human bond existing in our current culture. [FN125] The altered language does not change the legal status of animals because they remain the property of the human "guardians." [FN126] Notwithstanding the maintenance of animals' legal status as mere property, one proponent observed that the resolution changing the West Hollywood ordinance reminds those with pets that, "animals have rights, too." [FN127]

Such statutory revisions sometimes meet with defeat, however. For example, the California cities of Santa Cruz and San Francisco declined to make such changes. [FN128] Opposition to these measures is often based on several different viewpoints. Some contend that changing this statutory language represents the "first step toward banning domestic animals." [FN129] Others emphasize the different nature of animals and children and raise concerns that persons with service animals will be harassed. [FN130] Arguments also exist that changing the words used to describe the relationship is just semantics or is not an appropriate subject matter for city council measures. [FN131] Finally, opponents assert that considering animals as property better protects these companions because of existing legal rights to such property. [FN132] Regardless of the ultimate success of campaigns to revise statutory provisions, the activities themselves have drawn attention to the debate about the treatment of animals, particularly animals that are considered to be special or important under current law.


C. Distinctions Among Animals in the Legal System

Regardless of the status of animals as personal property, animals enjoy some special protections under the law--specifically welfare laws that govern their care and treatment. [FN133] The changes to current law proposed in this paper are predicated on drawing distinctions among animals. Providing additional protection or different treatment to certain animals on the basis of such distinctions is an integral part of the network of laws relating to animals under the existing legal system. [FN134]

An example closely connected to the companion animals targeted in this paper is the treatment of service animals that assist persons with physical and mental disabilities. [FN135] In order to receive designation as a service animal, the animal must be trained and work for the benefit of a disabled person with a demonstrated medical need. [FN136] The Americans with Disabilities Act of 1990 and the Fair Housing Amendments Act of 1988 require housing providers (as well as others) to make reasonable accommodations for the disabled. [FN137] One possible accommodation is to make exceptions to "no- pets" policies in order to allow the disabled to live with service animals. [FN138] Unless facility owners with "no-animal" rules can show that the service animals in question constitute a direct threat to the health or safety of others, they must make exceptions to their policies. [FN139] The status of the dog or cat as a service animal means that the animal is not treated as merely a pet under these laws, so persons harassing or harming them may be subject to greater penalties. [FN140]

Federal law also prohibits owners and operators of federally assisted housing designated for the handicapped and elderly from barring ownership of common household pets. [FN141] Owners and operators of such housing cannot "prohibit or prevent any tenant" from owning common household pets or "restrict or discriminate against any person . . . by reason of the ownership of such pets." [FN142] These owners or operators may only remove animals that constitute a nuisance or threat to other tenants. [FN143] They are required to inform tenants of their rights and are allowed to promulgate rules relating to the keeping of the animals. [FN144] Some state laws also provide that certain types of housing, such as condominiums and mobile home parks, as well as housing for the elderly or handicapped, cannot prohibit companion animals. [FN145]

The Pet Theft Act provides another example of the special treatment provided to companion animals under federal law. [FN146] The act requires a five-day holding period before selling any dog or cat to a dealer. [FN147] The stated intent of the Pet Theft Act is to prohibit the use of stolen pets in research and provide an adequate opportunity for pet recovery and adoption before an animal is sold to a dealer. [FN148] Some state and local laws also mandate minimum holding requirements prior to the "disposal" of dogs or cats by shelters and veterinarians. [FN149]

The current legal status of animals as property impacts the ability of the law to protect the relationship between humans and their companion animals. Despite the recognition that animals are a special kind of property for purposes of providing welfare protection, neither the courts nor legislators have significantly advanced legal changes that reflect the unique bond that exists between many people and their animal companions.


III. Separation
This section considers the ways that the law deals with the separation of animals from their human guardians. Separation can occur in various ways, such as becoming lost, divorce and death, by sale, gift, or application of law. The focus of this section is on separations caused by sale or gift, abandonment, law, and the animal becoming lost. Subsequent sections will deal with the separation of animals due to divorce and death.

An individual's ownership interest in an animal is key to determining the rights that person has to transfer or keep possession of the animal. The law treats companion animals as a type of property, [FN150] thus an owner can pass title to an animal like any other piece of personal property. [FN151] Licensing and registration requirements can serve as evidence of ownership. [FN152] Tattooing an animal--often with the owner's social security number--or implanting a microchip in the animal also serves as evidence of ownership. [FN153]


A. Voluntary Transfer of Animals

While it may appear easy to determine whether a voluntary transfer of an animal has occurred, it is frequently difficult to determine the intent of the parties and whether title to the animal has in fact been transferred.

1. Sale or Gift

A voluntary change in ownership of an animal can occur by sale or gift. The Uniform Commercial Code governs the sale of animals. [FN154] The UCC stipulates that unless otherwise agreed, title to the animal will pass to the buyer at the time and place where the seller completes performance of the contract. [FN155] Animals are treated as just as another "good" under the UCC; the purchase of an animal is treated no differently than a widget or car.

As a condition to acquiring an animal from a shelter or rescue organization, a person may be asked to enter into an "adoption agreement" rather than a contract for sale. [FN156] Multiple reasons support changing the structure of the document. First, using the term "adoption" rather than "sale" emphasizes that the agreement transfers a living being. [FN157] Second, the shelter may retain a right to reacquire the animal under certain circumstances. [FN158] The use of an adoption agreement may allow for the removal of an animal from the home more easily if there are allegations of abuse than a simple contract for sale. [FN159]

Courts will consider the nature of the transfer in determining whether the ownership of an animal has changed. [FN160] The 1995 New York state case of Mongelli v. Cabral dealt with the custody of a bird. [FN161] The Mongellis asserted that the bird had only been given to the Cabrals for caretaking, while the Cabrals stated that the bird was given to them as a gift. [FN162] The City Court of Yonkers held that the burden was on the Cabrals to show that a gift had been made and found they did not meet their burden. [FN163]

Assuming the legal status of animals as property is maintained, the laws relating to the sale or gift of animals work well so long as the rights and obligations of the parties are clearly articulated in the written document. Just as in other transfers of personal property, imprecise or vague language will cause problems. Examples of such problems include whether the seller has the right to reacquire an animal, the purchase price for an animal, any warranties as to the quality of an animal, and whether a sale or gift is actually being made of an animal.

2. Abandonment

In the case of companion animals, if an animal is abandoned it is clear that the original owner should not have the ability to regain custody. The law deems the owner to have voluntarily relinquished custody of the animal to the relevant governmental authority. [FN164] Many states have specific statutory provisions that apply when an animal is abandoned. [FN165] Often statutes will designate the abandonment of an animal as a violation of the state's anti-cruelty statute. [FN166] Although a general consideration of animal welfare statutes is beyond the scope of this paper, it is important to note that there can be significant penalties assessed against persons who violate such statutes. [FN167] Thirty-seven states have felony provisions relating to certain forms of cruelty to animals. [FN168] Some statutes use language that defines abandonment, in part, as having an "inten [tion] to give up" an animal. [FN169] As the violation of some abandonment statutes may result in criminal liability, the "intent" language in a statute may be critical. [FN170] Abandonment of an animal on a street, road, or public place is often treated separately in statutes. [FN171]

An animal's status is significant because some statutes distinguish between the duties owed to stray versus abandoned animals. [FN172] Specifically, a veterinary practice may have notification obligations and be required to retain an animal for a much longer period of time if an owner originally brought an animal to the clinic, versus the ability to immediately transfer a stray animal to a shelter. [FN173]

Just as in welfare statutes, generally, there is room for improvement in the application of laws relating to abandoned animals. Currently, the penalties for abandoning animals are relatively minor. Perhaps laws supporting policies that encourage the responsible surrender of unwanted animals will provide the only short-term changes. [FN174] Eventually, harsher penalties for the intentional abandonment of animals may be possible as a growing segment of the population comes to view the acquisition of animals as a serious commitment.


B. Involuntary Transfers of Animals


1. By Law

Officials can remove an animal from a home involuntarily if there is a possible violation of welfare laws or because of complaints that the animal is dangerous. [FN175] In the case of dogs, a guardian's ownership rights in the animal may be conditioned upon the maintenance of control over the dog. [FN176] Cats are also subject to licensing and control requirements by some municipalities; however, such requirements tend to be more difficult to enforce. [FN177] Due to the threat to the public from dog bites, beginning in the late 1970's a number of jurisdictions adopted statutes covering dangerous dogs. [FN178] Courts have consistently upheld the language of welfare and dangerous dog statutes as a legitimate exercise of the jurisdiction's police power. [FN179] Generally, the application of a dangerous dog statute requires that a dog first be identified as a danger to the public, usually because the dog bit or attacked a person or other animal. [FN180] This classification causes the owner's possession to become conditional, which may require keeping the dog confined or on a leash at all times, as well as calling for proof of minimum insurance coverage for dog-inflicted injuries. [FN181] If the owner does not follow the strict provisions of the law or the dog causes injury, criminal sanctions against the owner and/or seizure of the animal may result. Some statutes make it extremely difficult to regain custody of an animal once it has been confiscated. [FN182] These statutory provisions vary, but may require the owner to post a bond and pay the costs for the animal's care while it was held. [FN183] The ultimate penalty for the dog is euthanasia. [FN184]

If an animal is removed from a home, the owner is entitled to due process. [FN185] This includes the opportunity to be heard "at a meaningful time and in a meaningful manner." [FN186] In applying dangerous animal ordinances, procedural due process may require notification, an opportunity to be heard, and a proper criminal adjudication by a disinterested judicial officer. [FN187] Post-seizure hearings may also fulfill due process requirements. [FN188]

Animals can be removed, or a guardian can be forced to remove the animals from a property, due to nuisance and zoning rules. [FN189] Nuisance laws generally regulate the noise caused by an animal that barks, howls, or otherwise makes a noise that continuously and unreasonably disturbs the peace of others. [FN190] Nuisance laws may also apply if animals produce offensive odors or create unsanitary conditions. [FN191] Zoning laws can mandate distance restrictions between animal enclosures and property lines, and can prevent certain animals from being kept off the property altogether. [FN192] Often, local restrictions limit the number of animals kept per household. [FN193]

Some state statutes provide that landowners can "take-up" an animal trespassing on their property. [FN194] Depending on the statute, the landowner may be allowed to hold the animal until he has been compensated for any damages caused by the four-legged trespasser. [FN195] Some statutes require the landowner to turn the animal over to appropriate authorities, but such a landowner will have a lien on the animal until damages are paid. [FN196] The application of either of these types of statutes should not in and of itself result in the transfer of ownership of the animal. [FN197] Owners of livestock can often lawfully kill animals that harass or kill their cattle, sheep, or poultry. [FN198] In addition to providing protection against suits over the death of a dog, the owner of an animal who injures or kills livestock can be liable for the value of the animal harmed. [FN199] These livestock protection laws are based on the economic value of livestock over dogs. [FN200]

Numerous cases support the right of a jurisdiction to control companion animals through its police power, and that right will likely continue to be upheld. What is needed are updated laws that reflect the changes in demographic trends, such as the transition of an area from agricultural to residential use. Specifically, the changing values and customs of an area should support the revision of laws that currently allow for the taking up or killing of companion animals that are not causing immediate harm to humans or other animals. It is also necessary to make certain that the due process rights of owners of animals are upheld and that animals, so long as the public is protected, can be protected from the ultimate criminal sanction--death.

2. Lost and Found

It can be devastating for a family to lose a beloved companion animal due to death. [FN201] It can be even more distressing for a companion animal to be lost and for a family to not know the status of the animal. [FN202] Many laws apply to lost property, but these laws do not take into account the bond that can develop between families and their animals. [FN203] This section proposes that statutory provisions be adopted to take into account the changed status of companion animals in U.S. society given the importance of these animals to a significant portion of the population.

Under the common law, property is categorized as lost, mislaid or abandoned to determine the rights of the original owner and the finder of the property. [FN204] General statutes on lost and found property could apply to animals. [FN205] There are relatively few cases that have dealt with the application of these provisions to companion animals, however. One oft-cited case that analyzed this issue was Morgan v. Kroupa, decided by the Supreme Court of Vermont in 1997. [FN206] In Morgan, a five-year old dog broke free of its collar, ran away, and became lost. [FN207] The original owner, Kroupa, informed a local humane society, local businesses, and friends of the dog's status. [FN208] Morgan found the dog approximately two weeks after it was lost. [FN209] She contacted the humane society, posted notices in state parks and general stores, and arranged to have announcements regarding the dog broadcast on a local radio station. [FN210] More than a year after losing the dog, Kroupa learned that the dog had been seen at Morgan's house and went to investigate. [FN211] As Kroupa was leaving Morgan's house, the dog jumped into Kroupa's truck and Kroupa left. [FN212] Morgan brought an action in replevin to recover the dog. [FN213] The trial court noted it could possibly analyze the case under several theories, including: (1) Vermont's "lost property" statute; (2) analogizing the situation to a child custody case using a "best interests" of the dog standard; or (3) basing the judgment on the emotional attachment of the parties. [FN214] The trial court, applying the "lost property" statute approach, found that Morgan had "substantially complied" with the statute and awarded her possession of the dog. [FN215]

Vermont's Supreme Court analyzed the lost property statute and determined that it was intended to apply to farm animals of considerable value, not to lost domestic pets. [FN216] The court held that the judiciary should fashion a rule that recognizes the unique status of companion animals and protects the interests of the finders and original owners. [FN217] The court rejected a "best interests" of the animal approach, determining that courts were not able to evaluate such interests regardless of the strong emotional attachment of humans to their pets. [FN218] Although the Vermont Supreme Court found that the lost property statute did not apply, it nonetheless upheld the trial court's decision using a new standard. [FN219] The basic rule that was set, taking into account practical and policy considerations, was that "where the finder of a lost pet makes a reasonable effort to locate its owner, and responsibly cares for the animal over a reasonably extensive period of time, the finder may acquire possession of the animal." [FN220] The court rejected Kroupa's claims under the principles of trover and conversion citing to the qualified nature of the right of possession of domestic pets. [FN221]

A Washington court recently ordered a woman and her daughter to return a found dog to the animal's original owner. [FN222] Nine months after losing the dog, the original owner spotted it under the defendant's control. [FN223] Similar to the Morgan case, the finder did not deliver the animal to the local humane society, but made some efforts to find the dog's owner. [FN224] The original owner tried to find the dog by making personal inquiries, posting signs, and contacting the local humane society. [FN225] The trial judge found that there was sufficient evidence to support the ownership right of the original owner and that the efforts taken by the defendants were not sufficient to extinguish the original owner's property interest in the dog. [FN226] Pursuant to the trial court's order, the finders returned the dog to the original owner. [FN227]

The Vermont Supreme Court had the opportunity to revisit the issues raised in Morgan just a few years later. [FN228] In Lamare v. North Country Animal League, a dog broke free from its tether at Lamare's residence, was found running on a road, and was subsequently turned over to a local animal control officer. [FN229] The animal control officer, following the local dog control ordinance, placed notices describing the dog in various places around town. [FN230] Nine days later, the animal control officer transferred the dog to the North Country Animal League, which held the dog for approximately three weeks. [FN231] At that time, the animal control officer informed one of the plaintiffs' relatives that the dog was in the custody of the animal league. [FN232] The plaintiffs contacted the animal league that same day and left a message concerning the dog, following up the next day. [FN233] When the plaintiffs arrived at the animal league they were informed that the only way they would be able to regain possession of the dog was to complete an adoption application. [FN234] The plaintiffs completed the application and followed up with the animal league only to be told a few days later that their application had been denied. [FN235] The plaintiffs' application had been denied, according to the league, because "it was not in the dog's best interests to be returned to them." [FN236] The plaintiffs later found out that the animal league had approved another family's (identified as the Does) adoption application the day before the plaintiffs' first call and the dog had been adopted the day after the plaintiffs submitted their own application. [FN237]

The plaintiffs unsuccessfully attempted to recover their dog from the Does (whose identity had not been revealed) and damages from the animal league for violating their due process rights. [FN238] On appeal, the court considered the application of Morgan and the validity of the town animal control ordinance. [FN239] The state supreme court decided that Morgan did not apply. [FN240] The court distinguished Morgan, involving a dispute between private parties, with the current case relating to the "rights and responsibilities of a public entity vis-à-vis the owners of a lost dog." [FN241] Although the court ruled that the trial court should have only interpreted and applied the relevant legislative enactments, the judgment against the plaintiffs was not reversed because the court reached the same result based on different grounds. [FN242] The court found that the town ordinance was valid and the application of the ordinance did not violate the plaintiffs' due process rights. [FN243]

A similar case in Georgia upheld the authority of a humane society to allow a dog's adoption after the society had fulfilled all applicable statutory requirements. [FN244] In Johnston v. Atlanta Humane Society, the original owner inquired about his dog after the animal's adoption by another party was completed. [ FN245] The dog did not have a license or vaccination tag on its collar as required by statute. [FN246] Johnston sought to recover the dog, or its value, and requested the identity of the adopter, so that he could negotiate the return of the dog or a recovery of a fair value for his property. [FN247] The court considered the argument that the dog was Johnston's personal property, but determined that this interest was subject to the proper exercise of police power and that possession is governed by overriding public policy. [FN248] Essentially, if the possessor does not abide by the governing statute, in this case the licensing statute, the right to possession can be forfeited and transferred to the humane society. [FN249] While there can be difficulties in fulfilling due process notification requirements in the context of lost animals, according to case law, so long as procedures attempting to find an owner are utilized, animal control ordinances authorizing the impoundment and destruction of animals can meet such requirements. [FN250]

The clear trend among appellate cases is that once an adoption has been made through a recognized humane society, especially if the society followed the standards set forth under relevant law, the adoption will be upheld. Occasionally an adoptive home is willing to return an animal to the original owner, but that appears to be the exception rather than the rule. [FN251] Based on the few reported cases in this area, one of the safest ways (from a legal perspective) to adopt an animal is to utilize the governmentally authorized animal control or humane society system.

As seen in Morgan, the first issue is whether a lost property statute should even apply in cases dealing with companion animals. [FN252] If an animal is in the custody of an authorized humane society, there are generally specific statutory provisions governing the disposition of such animals. [FN253] The authority of states and cities to regulate animals has been repeatedly upheld. [FN254] As seen in the Lamare case, the primary question (if a humane society is involved) is whether the organization followed the relevant statutory provision and whether the statutory provision was valid. The question becomes more complicated when a humane society is not involved because there is not a specific statute covering the relationship of the private parties to the animal.

One argument against applying general lost property statutes in cases not involving humane societies is the existence of specific statutes that apply to animals not confined to an owner's property. Several states have statutes that prohibit companion animals, specifically dogs, from "running at large." [FN255] These statutes are sometimes drafted similarly to livestock fence- in laws. [FN256] The liability of an owner for violating the running-at- large statutes often turns on the interpretation of the statute's language relating to "at-large" and "to allow." [FN257] A showing of negligence is required in the interpretation of both of these phrases. [FN258] Given the difficulties in interpreting existing statutes and the lack of provisions that reflect the nature of the relationship between humans and their animals, it appears that existing statutes dealing with unconfined animals generally are ineffective in dealing with companion animals.

Several public policy arguments apply when determining the appropriate disposition of lost companion animals. [FN259] There is a clear public interest in the reduction of stray animals on the streets. [FN260] Stray animals can pose hazards to traffic, spread disease, and add to the pet overpopulation problem. [FN261] By allowing the finders of lost animals to keep such animals there is an incentive to take in and care for animals that are not otherwise within an owner's control. [FN262] If an animal is adopted into a new home and a reasonable amount of time has passed, the adoptive owners should be given some security that the animal will not be taken from them.

The value of lost animals to their original owner weighs against allowing a finder to gain ownership over such animals. [FN263] In addition to the fact that these animals are increasing in economic value, many studies show an intense bond between human guardians and their companion animals. [FN264] Even the most careful guardian of a companion animal may lose track of an animal. Certainly a balancing of these interests must be made. The first step is to clarify, by statute, the rights of the original owner and the adoptive owner. That way, well-meaning adoptive owners will not hesitate to bond with their new animal companions while original owners can protect their interests in animals that may be considered members of the family. In any such statute, several issues should be considered.

Initially such a statute should recognize that the ownership rights in an animal must be proven. The ownership of an animal can be supported by original sale documents, veterinary records, licensing records, as well as other forms of testamentary evidence, including witnesses or photographic proof. Such evidence may establish a rebuttable presumption that the person had an ownership interest in the animal. The lack of such evidence could support a rebuttable presumption that a legal transfer of the animal was not made.

Next, a balancing test should be applied to weigh the interests of the original and the adoptive families, absent any concerns that the welfare of the animal is at risk in one or both of the households. These factors could apply in situations involving humane society adoptions authorized by the government, but are more likely to apply in the disposition of animals that are not adopted pursuant to existing statutory regulations. The factors should vary by jurisdiction, depending on the needs and customs of each community.

One factor to consider regarding the original owner is whether the owner has licensed the animal, had the animal tattooed or microchipped, or attached a collar with contact information to the animal. [FN265] Such precautions would indicate that the original owners acted in a reasonable way to try to ensure that a lost animal would be returned to them. If the licensing or microchip information is accurate, and an original owner responds within a reasonable period of time, absent any welfare considerations, there should be a presumption for the return of the animal to the original owner. Another factor to consider is whether reasonable efforts were made by the owner to find a lost animal. [FN266] Not every owner has the capacity to canvass a neighborhood, but if a statute provided for minimal actions, such as registering a description of the lost pet with their local animal control or humane society or placing an advertisement in a local paper, owners will be able to demonstrate their intent to reunite with the animal.

In order to extinguish the ownership rights of an original owner, at a minimum it would be appropriate to require that a potential adoptive owner report a description of the found animal to the local animal control or humane society. The potential adoptive owner could also be required to have either a veterinarian or humane society inspect the animal for a tattoo or microchip to determine whether contact information is available on the original owner. Finally, the potential adoptive owner could be required to make a reasonable effort to locate the original owner. [FN267] Similar to the efforts of the original owners, a potential adoptive owner could be required to canvass a neighborhood, post signs, or place an advertisement in a local paper.

At the end of the day, in these cases, there will usually be more than one possible responsible owner for an animal. With the safeguards set up in the system, an original owner should be able to locate an animal within a short period of time, establish his or her original ownership, and regain possession of the animal. If a potential adoptive owner meets the test set out by the statute, his ownership rights should be established and the original owner's rights extinguished after a set period of time.


IV. Custody

Another legal issue that must be dealt with is the disposition of animals upon the separation or divorce of their legal owners. [FN268] The Centers for Disease Control and Prevention, using 2001 statistics, report that fifty percent of all marriages in America will end in divorce within twenty years. [FN269] A nationally known authority on family law states that "[e]very matrimonial lawyer has had to deal with the issue of pet custody." [FN270] Although companion animals are treated as property under the law, the issue of custody of animals "can become as important as children in a divorce settlement" and can get just as nasty. [FN271] If there are unemancipated children in a family, generally the pets will go to the custodial parent. [FN272] The more difficult cases are those where there are no children involved or if the children no longer live at home. [FN273]


A. Treated as Personal Property

Usually, animals are treated in property settlements as just another form of personal property and assigned a monetary value. This monetary value can vary dramatically. [FN274] Generally, the value of an animal is based on its fair market value. [FN275] A brief search of recent cases found a dog's value ranged from zero to one thousand dollars. [FN276] Although subject to statutory guidelines, courts have broad discretion when awarding marital property in divorce actions. [FN277] Sentimental value is one consideration in the division of property. [FN278] Another is whether the property was given to one or both spouses. [FN279] One of the earliest reported decisions relating to the custody of a dog found that the trial court's decision to award the dog to the wife was supported by the record showing that the husband had given the dog to the wife during the marriage. [FN280]


B. Current Case Law

Trial courts often approve settlement agreements that award custody and even support (sometimes referred to as "petimony") to one spouse in a divorce proceeding. [FN281] One example is Dickson v. Dickson. [FN282] In Dickson, the divorcing parties agreed to have joint custody of their dog, with the wife as the primary custodian, subject to reasonable visitation rights by the husband. [FN283] The husband was ordered to pay up to $150 per month for the dog's care and maintenance. [FN284] The consent order was later modified due to a material change in circumstances that rendered the original order inequitable. [FN285] In the modification, the wife was granted sole care and custody of the dog and the husband was ordered to pay half of the outstanding debts for the care and maintenance of the animal. [FN286] Furthermore, the order stated that the husband had no further interest in the dog but would also have no further liability for the dog's care. [FN287]

Another example is In re Marriage of Fore in Minnesota. [FN288] In that case, the disposition of the dog, Rudy, was set forth in the section of the stipulation and order allocating tangible personal property. [FN289] The husband was granted access "with/to Rudy during the first seven days of every month." [FN290] If the wife intended to board Rudy for any reason she was required to give the husband "the opportunity to spend the additional time with Rudy rather than putting him in a kennel." [FN291] Later court filings indicated that the visitation schedule was not successful, with an ex parte order requiring the county sheriff to pick up Rudy from the husband and return him to the wife. [FN292] Similar to the Dickson case, the husband in Fore later relinquished any "visitation/access" rights he had with Rudy. [FN293] Just as with visitation schedules with children, people can also structure their visitation with pets to occur for a block of time during the year. In Assal v. Barwick, the husband was given a thirty-day visitation period during each summer. [FN294]

There is judicial reluctance to award custody of animals using a "best interest of the animal" approach. [FN295] An example is Nuzzaci v. Nuzzaci. [FN296] There, the court declined to apply the best interests of the animal approach and refused to sign a Stipulation and Order for visitation rights relating to a golden retriever. [FN297] The judge referenced the lack of statutory support for such orders and expressed concern as to the court's ability to make decisions on the custody or visitation of animals in the absence of the parties' agreement. [FN298]

Arrington v. Arrington also distinguished between human children and animals by finding that a dog would be considered personal property. [FN299] Notwithstanding the fact that "Bonnie Lou" would be treated as personal property under the law, and that the "'office of managing conservator' was created for the benefit of human children, not canine," the court allowed Mrs. Arrington to continue to act as managing conservator within the guidelines set by the trial court. [FN300] In Bennett v. Bennett, the court declined to provide any special status to family pets and ordered the trial court to award an animal based on "the dictates of the equitable distribution statute." [FN301] The Bennett court cited to overwhelmed courts, difficulty enforcing and supervising the placement of animals, and stated that giving family pets special status within dissolution proceedings was unwise. [FN302]

Notwithstanding the lack of cases applying a best interest standard, some courts take into account the care of animals when awarding custody. In Pratt v. Pratt, the court stated that child custody statutes would be inapplicable to the award of custody of two Saint Bernard dogs, but found that the trial court could award them "in part on evidence of mistreatment of the dogs." [FN303] A Connecticut court considered the overall circumstances, including evidence that the husband had "not treated the dog kindly," in awarding the dog to the wife, notwithstanding the fact that the dog was originally a gift to the husband. [FN304] An Iowa court found that it did not have to determine the best interest of a pet, but stated that courts should not put pets in a position of being abused. [FN305] Even without specific statutory authorization, courts appear to consider the welfare of an animal, although they may not be willing to take the next step and apply a "best interests" standard.

Occasionally, a case relating to the disposition of a companion animal belonging to an unmarried couple or roommates will go to court. [FN306] An example is the 1997 dispute between roommates over the ownership of Grady, a cat. [FN307] In the absence of a witness to testify as to the initial gift of the cat to one roommate, the judge said that he would decide "what is in the best interest of Grady the cat" and awarded the cat to the roommate that had actually taken care of the cat. [FN308] Raymond v. Lackmann also took the interests of a cat into account when deciding that a cat should remain with a roommate who was not the original owner. [FN309]

As these cases illustrate, there is no set standard for awarding custody of animals in connection with the break up of a relationship. This puts all those involved in the case, the parties as well as the court, in the position of making up a standard on an ad hoc basis. It would be better for all to set up a system providing for clearer guidelines in these cases.


C. Statutory Provision Using Child Custody as a Framework

Regardless of some court holdings rejecting the application of child custody arguments in animal custody matters, statutory provisions applicable to animal custody cases could be drafted based on current laws relating to child custody. Courts deciding child custody cases have the benefit of statutory provisions to guide their decisions, [FN310] such as the baseline "best interests of the child" standard. [FN311] Statutes may also provide specific factors to be considered when determining the best interests of a child, [FN312] which include the relationship between the child and parents, which parent is the primary caretaker, the child's preferences, and stability of the living arrangements. [FN313]

Some of these same factors may also be useful in pet custody disputes, such as the best interest of the animal, the primary caretaker, and stability of living arrangements. The initial standard for animal custody disputes could be set as the "best interests of the animal." [FN314] The importance of determining who is the primary caretaker in child custody disputes is that such a person usually has a closer relationship with the child, is more experienced in meeting the child's needs, and has demonstrated a commitment to caring for the child that is likely to continue. [FN315] This factor would appear to be equally relevant when considering the care of a companion animal.

The weight given to the preference of the child in child custody cases varies depending on the child's age, intelligence, and maturity. [FN316] This factor would be difficult to apply to animal custody cases due to the limited ability of animals to communicate their preferences. Financial resources are normally irrelevant in child custody determinations, unless they reflect on a parent's ability to provide a stable home. [FN317] Financial resources should be equally irrelevant in animal custody cases. Stability of the environment could be an important factor in animal custody, especially if an animal appears to be thriving in his or her current placement. [FN318] It would seem appropriate, just as in child custody cases, that a more stringent standard be used to modify custody in animal cases in order to promote stability and continuity, as there is evidence that animals can have difficulties if their environment changes. [FN319]

Another theme in child custody cases that may be relevant to pet custody cases is the presumption that siblings should be kept together, unless there are exceptional or compelling reasons for their separation. [FN320] As discussed above, usually if there are children in the family, companion animals will be allocated to the parent with primary custody, leaving most of the "pack" intact. At least one case has taken into account whether the separation of two dogs would have any emotional effect on the animals. [FN321] In this case, the parties' two dogs were allocated one to each spouse during the week with the dogs spending Sunday together then switching households for the next week. [FN322]

States should adopt provisions to deal with the custody of animals, even if they do not take the step of determining what the best interest of animals will be in order to provide certainty to parties that are dealing with this special type of property. At a minimum, animals should be exempt from the rules providing that property settlements are final so that courts can consider the welfare of animals due to changed circumstances of the parties. In the absence of statutory guidelines, it is important for people who feel strongly about their access to an animal plan ahead to determine their future role in the animal's life.


D. Role of Contracts

Parties could determine in advance, whether they are a married couple or roommates, the disposition of any companion animals at the time of their separation. [FN323] Courts frequently hold that due to public policy, antenuptial agreements, as well as other private contracts, cannot affect the rights of the parties' children, thus a provision waiving child support, custody, or visitation, is not enforceable. [FN324] Given the current status of companion animals as a form of personal property, absent the application of welfare laws, there is no prohibition on the allocation of legal rights in animals in a contract. If any such provision were included in an antenuptial agreement or other contract, the parties must comply with the usual requirements of contracting (such as voluntary execution and knowledge of rights). [FN325]

At this point, given the lack of statutory and consistent judicial support for animal custody arrangements, it is essential for parties to enter into private contracts in order to protect the interests people have in companion animals. Whether this contract is made prior to or at the time of the separation, people who truly care about the best interests of an animal will need to agree on arrangements that provide the best environment possible for the animal. [FN326]


V. Estate Planning

A. Death of the Human Caretaker

An important issue for people who share their lives with companion animals is what will happen to those animals after the owners' deaths. It is clear from a sample of obituaries that many people consider their animal companions as part of the family as it is not uncommon to find animals that are listed in obituaries among the deceased's surviving relatives. [FN327] Some people also acknowledge companion animals that have preceded them in death. [FN328] If arrangements are not made in advance, companion animals will be treated as any other piece of personal property and will be given to the relevant legatee or heir. This can obviously cause problems if such beneficiary does not want to be or is not a suitable caretaker for a companion animal. [FN329]

Studies report that between twelve percent and twenty-seven percent of pet owners have made provisions in their wills relating to their companion animals. [FN330] Many options exist to try to ensure the proper care of animals after the death of the owner. Unfortunately, some such provisions may be unenforceable due to constraints set out in many states' probate laws. [FN331] Although recent changes in some states make it easier to provide for a pet, there needs to be more uniformity and certainty in this area.

As animals are considered a form of property under the current legal system, they cannot directly hold title to assets. [FN332] It is not possible, therefore, to make a testamentary gift directly to an animal. [FN333] Unlike gifts intended to benefit a specific animal, a gift that is intended to benefit an indefinite number of animals is deemed to be charitable in nature. [FN334]

One way to care for a pet after the owner dies is to establish a trust, but there are several problems in establishing an enforceable trust for the benefit of a specific animal. The first is that historically, an individual animal was not considered "a beneficiary [that could] be identified in definite and certain terms." [FN335] Another issue is that the Rule Against Perpetuities, which applies to the law of wills and trusts, provides that an interest in property must vest, if at all, no later than twenty-one years after the death of a measuring life. [FN336] The measuring life must be a human life "who can affect the vesting of the interest." [FN337] Since the life of the pet is what would affect the vesting of an interest in a pet trust, the trust violates the Rule Against Perpetuities. [FN338]

One way states deal with the issues preventing the establishment of an enforceable trust is to provide that an honorary trust can be created for the care of a specific animal. [FN339] Honorary trusts are technically unenforceable, however, a court may allow a trustee of the trust to carry out the wishes of the grantor. [FN340] If the named trustee does not carry out the terms of the trust, the funds allocated to the trust will revert to the estate. [ FN341] Even if a court allows for an honorary trust to stand, it is not uncommon for a court to determine the assets in the trust are excessive and reduce the amount of assets to be used for the care of the animal. [FN342]

Other possible avenues include gifts coupled with a power or conditional gifts. However, these methods have not been consistently enforced by the courts. [FN343] The language used to create the gift must be specific as to whether the care of the animal is a condition precedent or subsequent. [FN344] Some bequests that could be interpreted as conditional gifts have instead been deemed absolute gifts. [FN345]

The Uniform Probate Code added section 2-907 in 1990, which allows the establishment of a valid and enforceable trust for "the care of a designated domestic or pet animal." [FN346] This optional provision establishes a "presumption against a disposition . . . [for a pet's care] being 'merely precatory or honorary"' and instead treats these trusts separately from other trusts established for lawful noncharitable purposes. [FN347] The grantor's intent can be determined by the use of extrinsic evidence. [FN348] To encourage individuals to serve as trustees of such trusts, the UPC reduces the administrative burdens placed on the management of pet trusts. [FN349] Under section 2-907, a court is authorized to appoint a trustee and may make other determinations necessary to carry out the testator's intent. [FN350] An individual designated by the trust or appointed by the court can enforce the terms of the trust. [FN351] The inclusion of language allowing for an "enforcer" of a trust negates the need for a guardian ad litem to protect the interests of the animal beneficiaries of an enforceable pet trust. [FN352]

Under section 2-907, "the trust terminates when no living animal is covered by the trust." [FN353] There is specific language authorizing the court to "reduce the amount of property transferred, if it determines that that amount substantially exceeds the amount required for the intended use." [FN354] If there is a reduction in the property transferred, the property will pass as if it was unexpended trust property as directed in the trust, under a residuary clause in the testator's will, or to the heirs of the transferor. [FN355] It is necessary to carefully draft a provision providing for a pet trust to ensure that it follows the relevant state statute as there must be a valid pet trust before legal enforceability can be established. [FN356]

In the absence of a state provision that provides for an enforceable pet trust, it may still be possible to provide for a pet through the provisions of another trust, although with greater cost and complications. This option requires the creation of an enforceable trust in favor of a human beneficiary that will care for an animal. [FN357] The trust would then instruct "the trustee to make distributions to the beneficiary to cover the pet's expenses." [FN358]

Generally probate issues are interpreted under state law. There have been attempts to introduce provisions at the federal level, however, to provide uniformity in the treatment of trusts for pets. [FN359] In May 2001, Representative Earl Blumenauer (D-Or.) introduced a bill "[t]o amend the Internal Revenue Code . . . to treat charitable remainder pet trusts in a similar manner as" certain other charitable trusts. [FN360] The bill provides for a tax structure that permits the establishment of enforceable pet trusts for twenty years or the life of a pet. [FN361] The purpose of the trust would be to reimburse a caretaker for the care of a pet. [FN362] Any remaining funds in the trust after the death of a pet must go to a specified charity. [FN363] There is no limit on the amount provided in the trust. [FN364] Any disbursements from the pet trust will be taxed at the estate tax rate. [FN365]

Unfortunately for humans who wish to set up an enforceable trust, relatively few states have adopted section 2-907, or any similar provision, although the number is increasing. [FN366] Given the mobility of society, even the most well-intentioned testators may be unable to protect their pets if they move to states without similar language. Just as some people criticize the large expenditure of resources on animals during an owner's lifetime, there can be criticism over the continued allocation of such resources after death. [FN367] There are few restrictions (other than basic welfare laws) that govern the treatment of animals during a person's life. Not allowing people who have the desire to continue the accustomed lifestyle of their companion animals after death is a waste of judicial resources. Uniform Probate Code section 2-907 is a good beginning to a process of providing for consistency in this area and should be considered by states updating their laws. The adoption of a federal statute supporting the validity of pet trusts will provide some support for people trying to provide for their pets, but until there is more uniformity in state law, people will need to be careful if they want to ensure that their pets will be able to live in comfort for the remainder of their days.


B. Death of the Companion Animal

Due to the short life spans of many animals, it is likely that a person will need to deal with the death of an animal companion during the person's lifetime. Studies show a wide range of responses to the death of a pet. [FN368] It is now acknowledged that the death of a companion animal can cause grief that can be as significant as the grief felt at the loss of a human family member. [FN369] There is wider recognition of the grief process associated with the death of a companion animal. [FN370] Some veterinary schools now include education about the grief process in their curriculums. [FN371] There are pet-loss support hotlines, grief counselors and internet memorial sites that deal with this issue. [FN372] The stereotype that only those without close human bonds will be impacted by a companion animal's death is no longer true. [FN373]

Some people are unwilling to accept the death of a pet and have turned to cloning to try to recreate the animal. [FN374] Although the widespread cloning of domesticated animals is not available yet, there are several people that have taken the step of having their pets' DNA harvested in anticipation that the service will become available in the future. [FN375] As with other cloning issues, the ethics of cloning domesticated animals is controversial, especially given the existing problem of pet overpopulation. [FN376]

One aspect of this issue is the way that people deal with the body of the pet. Some cities allow for backyard burial, but others restrict this form of disposal due to environmental concerns. [FN377] Although cremation is quite common, there are 750-800 pet cemeteries in the U.S. [FN378] "There's a saying in the pet cemetery business that people bury people because they have to, but they bury pets because they want to." [FN379] Pet cemeteries are not as well regulated as cemeteries for humans, sometimes only subject to local planning and zoning commissions. [FN380] The cost of pet caskets and burial in pet cemeteries varies widely. [FN381] It is even possible to mummify small dogs and cats. [FN382] Although considering the impending death of a companion animal can be painful, it is important for people to consider their options in advance in order to plan for the appropriate disposal of remains. [FN383] Given the significant number of people who are spending considerable resources on services relating to the burial of their animal companions, it is appropriate for states to provide at least minimal regulations to protect the interests of these consumers.

Turning back to planning for surviving animals, additional uniformity is needed in state statutes to ensure people are able to provide for their animal companions. Planning ahead is crucial if companion animals are to be protected. People can begin the process by determining who should be responsible for the care of an animal immediately upon the disability or death of the owner. [FN384] Just as with other estate planning decisions, owners should discuss with relevant family members and friends their intentions relating to their companion animals. After establishing a plan, through legal documents, owners need to periodically review these documents and update them to reflect changes in their lives and applicable law.


Conclusion

Companion animals play a significant role in many people's lives. For a substantial number of pet owners it is important to protect their animals and attorneys must be prepared to assist them in reaching that goal. It is time for governmental authorities at the local, state, and federal levels to recognize that these animals are an integral part of the community and provide for legislation that will allow for the protection of the animals by their human guardians.

Certainly the adoption of new statutory provisions to deal with lost and found animals is a viable short-term goal. It is perhaps less likely that states will adopt guidelines to deal with the custody of companion animals upon divorce, but parties can take measures to safeguard their interests through private contracting in this area. Statutory provisions allowing for the efficient protection of companion animals through estate planning are already available, but more uniformity is needed in this area. There has been considerable success in the drafting and adoption of uniform and model acts in similar areas, more generally, and these issues could easily be addressed using those processes.


[FNa1] . Associate Professor of Law, Valparaiso University School of Law; LL.M. University of Iowa, 1995; J.D. University of Richmond, 1992. The author wishes to thank Laura Twing, Nicola Tabbott and all the participants of the Valparaiso University faculty colloquium for their comments on this article. She thanks the following practitioners that took time out of their busy schedules to assist in obtaining information on and discussing their experience in representing clients on a lost and found case: Marshall Ferguson, John Groseclose, Adam Karp, G. Paul Mabrey and Matthew Rusnak. She also thanks her research assistants Kimberly Connor and Kendal Dameron, and her administrative assistant, Melissa Mundt for their invaluable assistance. This article is dedicated to Jacquelyn Uhura (a/k/a Jackie), the author's microchipped and subject-of-an-enforceable-trust animal companion.


[FN1] . Am. Pet Prods. Mfrs., 2001-02 APPMA National Pet Owners Survey, at xxxiii (2002) [hereinafter APPMA Survey] (reporting data from 2000). The survey reported that sixty-two percent of U.S. households have pets. Id. at xiv (the term "pet" is defined to include dogs, cats, fish, birds, reptiles, and other small animals). Other studies have shown that pets are viewed as "members of the family." See, e.g., Aaron Honori Katcher, How Companion Animals Make Us Feel, in Perceptions of Animals in American Culture 113, 121 (R.J. Hoage ed., 1989).
While pets or companion animals can be defined to include a wide array of animal species, this paper is primarily focused on issues involving and related to dogs and cats. To a lesser (topical) degree, the relation of humans to pet birds will be discussed; and where relevant, references will be made to case law involving birds.


[FN2] . APPMA Survey, supra note 1, at xxxiii. Surveys indicate that ninety- four percent of dog owners and ninety-one percent of cat owners agreed with the statement that benefits of owning a pet include companionship, love, company, and affection. Id.


[FN3] . Reportedly, President Lyndon Johnson thought the family dog (Yuki) should be included in a family portrait taken at his daughter's wedding. Lady Bird, his wife, vetoed the idea and Yuki was not included in the photograph. Niall Kelly, Presidential Pets 85-86 (1992). While the inclusion of pets in family photographs evidences the roles pets can have in family life, at a more specific level the placement of pets within the photograph can shed further light on the evolving nature of these roles. In one study that examined how cats and dogs are incorporated in family photographs, the people and animals were touching each other in ninety-seven percent of the photographs. Katcher, supra note 1, at 122. This photographic study reinforced the conclusion drawn by prior behavioral studies--namely, that in such photographs persons and animals were posed in the respective roles of parents and children. Id. This contrasts with the common ways of presenting animals in portraiture prior to the twentieth century, where animals were primarily shown either laying at the masters' feet or in formal family portraits posed with children. Id.


[FN4] . This trend can even be seen in the animals kept by U.S. presidents. Early in American history, the animals kept by presidents on White House property tended to be utilitarian. For example, Presidents William Henry Harrison, Andrew Johnson, and William Howard Taft all kept cows. Kelly, supra note 3, at 21, 31, 53. In contrast, the most recent occupants of the White House have limited their companion animals to dogs and cats, including Jimmy Carter (cat), Ronald Regan (dog), George H.W. Bush (dogs), William Clinton (cat and dog), and George W. Bush (dogs and a cat). Id. at 96-102; see also The Early Show: The Presidents' Pets (CBS television broadcast, Mar. 28, 2002), available at http:// www.cbsnews.com/stories/2002/05/14/earlyshow/living/petplanet/main508963.shtml (last visited Nov. 19, 2002).


[FN5] . Katcher, supra note 1, at 123 (observing that fewer people are having children and that there are fewer children in families).


[FN6] . Alan M. Beck & Aaron Katcher, Between Pets and People: The Importance of Animal Companionship 11-16 (rev. ed. 1996) (discussing naming and "conversing" with companion animals); cf. Katcher, supra note 1, at 121 (discussing the pets of urban Americans). Studies of the way humans speak to companion animals have used the terms "doggerel" and "petese" to describe this type of verbal and physical interaction. See, e.g., Gail F. Melson, Why the Wild Things Are: Animals in the Lives of Children 46-48 (2001). The use of petese, employing a lower voice and more relaxed facial features, can be seen to support findings that a significant bond exists between humans and their animal companions. See id. at 47.


[FN7] . Leslie Mann, Pet's Domain Includes the Hearth as Well as the Heart, Chi. Trib., Apr. 2, 2000, at 1 (citing to a study conducted by the American Animal Hospital Association).


[FN8] . See infra notes 83-86 and accompanying text.


[FN9] . See Early Today: Canine Companions of Past and Present U.S. Leaders (CNBC television broadcast, Jan. 4, 2002), available at 2002 WL 5825117 (discussing various presidential pets and the Presidential Pet Museum). See generally Kelly, supra note 3; Roy Rowan & Brooke Janis, First Dogs: American Presidents & Their Best Friends (1997).


[FN10] . See e.g., Kelly, supra note 3, at 65, 89 (discussing the friendly photo of Herbert Hoover and his dog, King Tut, that was distributed when he was running for president and candidate for Vice President Richard Nixon's use of his dog, Checkers, to defuse a situation involving an alleged secret slush fund of campaign contributions). The relationship between some U.S. presidents and their companion animals has apparently been quite close. For example, President Franklin Delano Roosevelt's dog, Fala, reportedly slept on a blanket next to his bed. Rowan & Janis, supra note 9, at 106. At least one president has been involved in the animal welfare movement. President Millard Fillmore (1850-53) was involved with the American Society for the Prevention of Cruelty to Animals as a founding member and president of the Buffalo chapter. Kelly, supra note 3, at 26. The perceived mistreatment of animals can negatively impact a politician's popularity ratings. Perhaps the best known example of this occurred when President Lyndon Johnson was photographed picking up his beagles (Him and Her) by their ears. See id. at 83-84.


[FN11] . Melson, supra note 6, at 19.


[FN12] . Garfield, the cartoon cat created by Jim Davis, "reviewed" Millie's Book (as dictated to Barbara Bush) in Not Bad for a Dog, N.Y. Times, Sept. 16, 1990, § 7, at 9. See also Steve Dale, Experts Debate Negligence over the Death of Buddy, San Diego Union-Trib., Jan. 17, 2002, at E3 (discussing the death of President Clinton's dog Buddy and the "infamous dispute" between Buddy and Socks); Sandra Crockett, Socks Drew the Short Straw: Cat Expert Says Clintons Didn't Help Pets Get Along, Balt. Sun, Jan. 28, 2001, at 7E (discussing the adoption of Socks by former White House secretary, Betty Currie). Hillary Clinton also put together a book of children's letters to Socks and Buddy. See Hillary Clinton, Dear Socks, Dear Buddy: Kid's Letters to the First Pets (1998); see also Michael Saul, First Lady Has Pet Project--Her Own Book, Daily News (N.Y.), Apr. 19, 2001, at 5 (discussing a possible book by Laura Bush and prior books by or about presidential family pets).


[FN13] . See generally Companion Animals in Human Health (Cindy C. Wilson & Dennis C. Turner eds., 1998) (discussing a variety of studies done on the impact of companion animals on human health).


[FN14] . Delthia Ricks, Early Exposure to Pets May Put Leash on Allergies, L.A. Times, Sept. 2, 2002, at S3 (discussing a recent study that found exposure to at least two dogs or cats during the first year of life might drastically reduce the risk of allergies); see also Melson, supra note 6, at 99-131 (discussing the use of animals in therapy with children and the beneficial impact animal contact can have on children).


[FN15] . Katcher, supra note 1, at 120, 123 (discussing how visual and physical contact with animals can have a calming effect, and reporting human physiological changes during interactions with pets). One study even found that people with companion animals had lower levels of cholesterol and triglycerides. Beck & Katcher, supra note 6, at 7.


[FN16] . See generally, e.g., Elizabeth Blandon, Reasonable Accommodation or Nuisance? Service Animals for the Disabled, 75 Fla. B.J. 12, 14 (2001) (noting that while the use of service dogs to assist persons with physical disabilities is well known, the use of animals to assist persons with mental disorders such as depression, panic disorder, and bipolar disorder has recently generated attention); Melson, supra note 6, at 99-131 (discussing the use of animals in therapy with children).


[FN17] . See Allan Turner, Dogs Livin' It Up: Pooches Get the Best Their Owners' Money Can Buy, Houston Chron., Feb. 11, 2001, at A35. In 2001, Americans spent over 28.5 billion dollars on their companion animals. Azell Murphy Cavaan, Animal Magnetism--Doggone It! Americans Have a Soft Spot for Their Pets, Boston Herald, June 27, 2001, at 56. Cf. Mann, supra note 7, at 1 (reporting on the change of dogs from utility animals to members of families).


[FN18] . Dog sitting services are often used when a family is out of town or on a daily basis. A dog (or cat) sitter comes to the home and walks, feeds, and interacts with the animal. Generally, for day care the animal is dropped off (or in some cases picked up and taken to a central location) to interact with other dogs and caretakers. See, e.g., Dave Ford, Bark and Ride, S.F. Chron., Feb. 2, 2001, at WB1. The cost of these services vary considerably based on such factors as geographic location, level of care and the economic resources of clients. See, e.g., Beth Dolan, Yappy Days, Tampa Trib., Mar. 23, 2001, Baylife, at 1; see also Betsy Cook Donahue, Dog Days: If It Is a Dog's Life, It's a Pretty Good One These Days, Charleston Gazette, Feb. 16, 2000, at P1D (noting that twenty-seven percent of customers in a recent PETsMART survey said they take their pets to day care).
There are organizations that provide information about pet sitters in various geographic areas. E.g., Petsitters.com, at http://petsitters.com (last visited Nov. 19, 2002) (providing a search engine for finding a pet sitter in specific geographic locations); Nat'l Ass'n of Prof'l Pet Sitters, at http:// www.petsitters.org (last visited Nov. 19, 2002).


[FN19] . See Brian E. Clark, Dog Park Is Possible for Rancho Bernardo: Council's Maienschein Working on Project, San Diego Union-Trib., Oct. 20, 2001, at NI1; Robert E. Misseck, Dogs Get a Place to Roam at Echo Lake, Star-Ledger (Newark, N.J.), Nov. 9, 2001, at 35; Eileen Rivers, At New Park, Every Dog Has His Play: Quiet Waters Opens Canine Rumpus Room, Wash. Post, Dec. 6, 2001, Ann Arundel, at T03; Fred Swegles, Dogs Will Get Their Day in City's Parks: Council Approves Creating a Place for Pooches Only: Access to Three Parks, Orange County Reg. (Cal.), Oct. 12, 2001, at Cover; Dogpark.com, at http:// www.dogpark.com (last visited Nov. 19, 2002); cf. Dina Sanchez, Talk of Dog Park Perks Ears in Winter Springs: Group Wants One Even More Fetching than Sanford's, Orlando Sentinel, Dec. 21, 2001, at G1; Annie Sweeney, Lincoln Parkers Want Place for Their Dogs, Chi. Sun-Times, Aug. 15, 2001, at 23.


[FN20] . See, e.g., Travelpet.com, at http://travelpets.com (last visited Nov. 19, 2002) (providing travel tips and listing inns that allow pets); cf. Hikewithyourdog.com, at http://hikewithyourdog.com (last visited Nov. 19, 2002) (providing links to national and state parks that allow dogs).


[FN21] . E.g., Devin Rose, Camp Dogwood, Chi. Trib., Nov. 4, 2001, § 13, at 1 (discussing a dog camp north of Chicago and other dog camps).


[FN22] . Turner, supra note 17, at A35 (discussing the boarding of dogs and costs relating to the care of companion animals). According to one report, forty-four percent of animals left behind can even expect a vacation souvenir upon the family's return. Melissa Draper, Family Ties Extend to Include Pets, News and Observer (Raleigh, N.C.), Apr. 27, 2001, at N4 (citing to a survey by the American Animal Hospital Association).


[FN23] . Companionair.com, at http://www.companionair.com (last visited Nov. 19, 2002) (Companion Air is the first airline created for pets and their owners, with discounts on fare prices for human clients.).


[FN24] . The average number of visits to the veterinarian during 2001-2002 for dogs was 2.6 and for cats, 1.6. APPMA Survey, supra note 1, at xx.


[FN25] . Jane E. Brody, V.I.P. Medical Treatment Adds Meaning to a Dog's (or Cat's) Life, N.Y. Times, Aug. 14, 2001, at F4 (discussing medical treatments available to companion animals); Draper, supra note 22, at N4 (discussing the availability of laser surgery for pets). There are now veterinary specialists in a variety of fields, such as ophthalmology and cardiology. See, e.g., Peggy Noonan, New Tricks for Old Cats and Dogs, Too, USA Weekend, May 11-13, 2001, at 6; see also Brody, supra (discussing medical treatments available for animals including kidney transplants for dogs and cats, which cost around seven and five thousand dollars, respectively).


[FN26] . Brody, supra note 25.


[FN27] . Frank Bruni, Acupuncture for the Dog: Alternative Medicine Catches on with Pet Owners, N.Y. Times, Aug. 18, 1998, at B1 (discussing alternative treatments for animals including acupuncture and hydrotherapy); Kathleen Kiley, Healing Pets with a Holistic Approach, N.Y. Times, Aug. 5, 2001, § 14CN (Connecticut), at 7 (discussing holistic veterinary practices such as the use of acupuncture); Sam Lubell, Alternative Medicine for Pets, N.Y. Times, Sept. 2, 2001, § 14WC (Westchester), at 3 (same). See generally American Holistic Veterinary Medical Association, Complementary and Alternative Veterinary Medicine, at http://www.altvetmed.com (last visited Nov. 19, 2002); American Academy of Veterinary Acupuncture, at http://www.aava.org (last visited Nov. 19, 2002).


[FN28] . See generally, e.g., La Monica Everett-Haynes, Rest in Peace: Sending Spot to His Reward, Salt Lake Trib., Aug. 4, 2000, at B1; Linda Wilson Fuoco, Cemetery Offers Resting Place for Pets and Their People, Pittsburgh Post-Gazette, Feb. 20, 2000, at W4; Andrea Jones, Pet Cemetery an Idyll to Unconditional Love, Atlanta J. and Const., Dec. 25, 2001, at 16D; John Murawski, A Quiet Resting Place for Lost Loved Ones, Palm Beach Post, Feb. 26, 2001, at 1A; Pat Shellenbarger, Acknowledging the Loss: Burial Services Help Survivors Mourn Loss of Their Loved Ones, Grand Rapids Press, Apr. 19, 2001, at B1 (quoting Brenda Drown, the executive secretary of the International Association of Pet Cemeteries, as saying that there are 750 to 800 pet cemeteries in the U.S.).


[FN29] . See, e.g., Jean C. Yasuhara, " Cruella De Vil" Revisited: The International Dog and Cat Fur Trade, 22 Loy. L.A. Int'l & Comp. L. Rev. 403, 404 (2000) (discussing reactions to an investigation by the Humane Society of the United States into the use of domesticated dog and cat fur on coats). A few states have laws prohibiting the sale of dog or cat fur. Id. at 416- 19. Federal law also prohibits the importation of dog and cat fur products. 19 U.S.C. § 1308 (2000) .
For a discussion of the moral taboo in the United States against eating dogs and cats, see Beck & Katcher, supra note 6, at 22-23. One example of a case of animal cruelty that received a significant response from the public was the case of "Leo," a Bichon Frise, who died after being thrown into traffic during a "road rage" incident. See Man Guilty of Animal Cruelty: Convicted of Tossing Dog to Its Death, Newsday (N.Y.), June 20, 2001, at A2. A significant reward fund was raised for information leading to the conviction of Leo's killer. Matthew B. Stannard, Donors Take $45,000 Back From Reward in Leo Case: Virginia Group Says It Wasn't Consulted, S.F. Chron., June 28, 2001, at A13 (leaving a reward in the amount of approximately $75,000 to be split among several people who provided information in the case). The Leo case received national news coverage. See, e.g., Today: Sara McBurnett Discusses Andrew Burnett's Indictment for Killing Her Dog Leo in a Fit of Road Rage (NBC television broadcast, Apr. 16, 2001), available at 2001 WL 23797756 .


[FN30] . One commentator divides the way we relate to animals into three distinct categories to explicate a theory of how we define the level of responsibility we have toward animals. These categories are animals as wild creatures, animals domesticated and reared for human purposes, and animals as pets. Roger Scruton, Animal Rights and Wrongs 82 (3d ed. 2000). Scruton articulates that pets have honorary membership in the moral community and have a claim to our protection. By causing pets to be dependent on humans, Scruton posits that pets have a special claim on people. Id. at 82-83.


[FN31] . See infra notes 52-57 and accompanying text for a discussion of anthropomorphism; infra notes 58-62 for a discussion of neoteny.


[FN32] . See Donald McCaig, Dogs and Us: A History of Our Evolving Relationship, Bark, Winter 2001, at 38, 40 (reporting on the work of geneticists Charles Vila and Robert Wayne dealing with coyote, wolf, and dog mitochondrial DNA).


[FN33] . Roger A. Caras, A Perfect Harmony, The Intertwining Lives of Animals and Humans Throughout History 76 (1996) (Caras is referring to the Canis lupus pallipes subspecies of wolf, but notes that "it now seems certain that other subspecies had to be involved as well, and perhaps even other canine species"); see also McCaig, supra note 32, at 40 (citing to evidence that either the wolf- like Tomarctus or fox-like Leptocycons were the ancestors of domesticated dogs). Although the conventional wisdom is that one species is ancestral to all domesticated dogs, Caras reflects on the "astounding variety" of breeds and concludes this "conventional wisdom" to be "conventional error." Caras, supra note 33, at 83.


[FN34] . McCaig, supra note 32, at 40 (stating that this archaeological evidence is the oldest undisputed evidence of the human-dog connection). These graves are located in present day Israel. Id.


[FN35] . Caras, supra note 33, at 78. Caras notes that at least four distinct breeds of dogs were known in ancient Europe. Id. at 79.


[FN36] . Id. (citing to dog remains dating between eleven and twelve thousand years ago in Asia Minor and Persia, respectively).


[FN37] . Id. at 80. Genetic evidence dates Inuit dogs back ten thousand years in Alaska. McCaig, supra note 32, at 40; see also Caras, supra