An article discussing the current state of the law and new directions in companion animal custody cases in divorce. Includes overview of the steps generally taken in property distribution upon divorce, and how companion animals might fit into that analysis.
Charlie is four years old, and he likes to do the same things that most four-year-olds do. He enjoys sitting in the kitchen with Mrs. Johnson while she bakes cookies and playing ball in the backyard with Mr. Johnson. Charlie loves both of them, and, as they’ve explained to him, they love him too; the only problem is that they don’t love each other anymore. Now that they’ve decided to get a divorce, they have to decide who’ll get custody of Charlie. If they’re unable to reach an agreement between themselves, the courts will have to decide for them. One more detail to complete the scenario: Charlie isn’t the Johnsons’ son- he’s their cocker spaniel.
When companion animal guardians divorce, the decision as to which of them will retain custody of the animal itself will be made based on the current legal system. Of course, some couples will be able to agree on the matter between themselves, and the most the courts will have to do is review the settlement agreement that the couple has reached. However, the issue is increasingly becoming a source of frequent disagreement between divorcing couples, and courts are being asked to a greater extent than ever to make a determination as to which human caretaker should retain custody of companion animals. The current laws provide for the companion animal to be treated as personal property, and its home determined based on property laws as part of the marital estate. Societal needs are trending toward a rejection of this treatment, and differing approaches are being petitioned before courts; some judgesare making exceptions and expanding the common law as a response, while others outright reject the requests, usually based on a lack of authority to make an exception to the property treatment.
This paper is presented as a discussion of the law as applied to companion animal custody issues in divorce proceedings.  Part one discusses the state of the law as it applies today, both as applies to the status of companion animals as property, and to a broad understanding of property disposition in divorce proceedings. This section includes a discussion of the main steps of property disposition and how they apply to companion animals, including the determination of which law applies and which property is actually divisible as part of the estate. Further steps addressed include valuing the property, settlement agreements between the parties, and allocation of the property by the courts. Part two discusses changes that are occurring in the field of custody determination of companion animals upon divorce, including reasons for that change, and judicial reluctance as well as support for changes in the area. The section includes an examination of cases in which the court has been asked to make an exception to the general rules, including cases where custody of companion animals has been awarded based on their best interests, as part of a shared custody or visitation arrangement, or when the decree has included “petimony,” a monetary support award for the animal. Finally, part three discusses issues of importance to be considered when bringing such a request before a court; these questions focus on both the human and animal aspects of the couple’s situation. Related concerns are already beginning to encroach on the arena of companion animal custody determination, and future expansion of the law will need to address them as a whole.
II. CURRENT STATE OF THE LAW
A. Companion Animals are Personal Property in the Eyes of the Law
The current legal system classifies and treats companion animals as personal property.  “It is undisputed in the law that dogs and other domestic animals, commonly referred to as pets, are subjects of property or ownership. In fact, once any animal has been legitimately reduced to private control, confinement, and possession, it becomes private property.”  Thus, general property laws apply to companion animals in proceedings running the gamut from criminal liability to civil ownership disputes.
Michigan State University College of Law’s Professor David Favre has advocated for an increased recognition of the companion animal’s status as a living being, through his “living property” concept, encompassing “physical, movable living objects- not human- that have an inherent self-interest in their continued well-being and existence.”  However, our legislatures have not yet recognized such a category. As such, there is no distinction in the law between a companion animal and any given piece of inanimate personal property, divisible upon divorce according to one of two marital property allocation schemes. In determination of its custody upon guardian divorce, there is no direct basis in the law for treating the companion animal any differently from the divorcing couple’s big-screen television. 
B. How General Property Disposition Considerations in Divorce Proceedings Affect the Question of Companion Animal Custody
In order to understand how custody determinations of companion animals are currently made, it is important to examine that concept in the general context of property allocation during divorce. Because divorce law is many-nuanced, only general considerations and majority rules are highlighted, but nearly all of them have exceptions. It is important to note that each jurisdiction will have its own statutes that must be considered; anyone attempting the examination of a companion animal custody case must begin the process by consulting them. Herein, the general considerations and the finer distinctions they encompass are set forth as they concern courts asked to make a determination of companion animal custody in a divorce settlement.
When a married couple divorces, their property is divided based upon several considerations. Because divorce is unknown to common law, the jurisdiction’s marriage dissolution statutes will control a court’s property division authority.  Note, however, that while the court has strong statutory guidelines  , it also has broad discretion in this authority.  The first issue to consider, then, is which statute controls. The next step is to determine which property is available for allocation as part of the marital estate. The court then needs to determine the questioned property’s value. Finally, the court will allocate the property as part of the divorce decree, usually taking into account any agreements between the parties.
1. Distinctions Between the Major Property Division Systems
There are two main property division systems in place in our legal system, one based on community property theory and the other on the equitable distribution doctrine. The first issue to consider in property distribution is whether the jurisdiction whose law controls is a community property state or an equitable distribution state. The majority of states’ statutes call for division of marital property based on the equitable distribution doctrine,  although nine states require distribution from a community property scheme. 
In jurisdictions that divide marital property according to the community property approach, the couple’s marital assets are divided equally between the parties.  This is a straightforward application, where all earnings and losses of both spouses throughout the marriage are considered, and then split between the parties. 
In an equitable distribution state, the marital assets are divided “equitably,” which does not necessarily mean equally.  The court again looks at all earnings and losses of both spouses, but allocates the property “ based on the facts of the individual marriage.”  In the equitable distribution instance, many factors are taken into account, which are set forth by each state’s applicable statute and often include:
considerations stemming from the marriage itself, such as its duration, the contributions the parties made toward the marriage, home, and family, and the reasons for the divorce or dissolution; any dissipation of assets by a spouse; the physical and mental condition of the parties at the time of the distribution; the economic circumstances of the parties, including their current assets and liabilities and their earning capacity in the future; factors bearing on particular items of property or the divisible property as an aggregate, including contributions to the acquisition of property; parallel orders concerning other forms of support or maintenance; and consequences flowing from property division, such as taxes, attorney’s fees, and other costs. 
While in a community property state, the court is not at liberty to consider as broad a range of facts; however, a party interested in obtaining custody of the marital estate’s companion animal in an equitable distribution jurisdiction will have a number of opportunities to prove that, based on the factors prescribed to the judge for consideration, it would be more equitable for her to retain custody of the animal. Based on the court’s wide range of discretion in property allocation in marriage dissolution proceedings, at least one court has taken the approach that “any item that is reasonably likely to possess far greater sentimental value to one party than to the other . . . should remain, as far as is reasonably possible, in the possession of the party to whom the sentimental value is the greatest,”  a concept that can clearly apply to companion animals.
Although each state has its own statute relating to marital property division, two different uniform acts have been created to address the issue by the National Conference of Commissioners on Uniform State Laws: the Uniform Marriage and Divorce Act (UMDA) and the Uniform Marital Property Act (UMPA).  The UMDA advocates an equitable distribution approach, requiring the court to “equitably apportion”  marital property or divide it “in just proportions.”  The UMPA, on the other hand, advocates a community property approach, whereby each party is entitled to one half of the property accumulated during marriage. 
2. Determining Which Property is Divisible as Part of the Marital Estate
Once it is determined which property allocation model the court will work from, “[t]he first step in any property division is . . . determining whether property is marital or separate.”  This is due to the rule valid under either allocation model that only marital assets, not separate property, are divisible in a divorce judgment.  However, both models also hold a rebuttable presumption that any property acquired during the marriage is divisible marital (in equitable distribution jurisdictions) or community (in community property jurisdictions) property.  The two models consider similar property to be marital assets, but there are some distinctions. In community property states, any assets “acquired by a husband and wife . . . during their marriage, and while domiciled [in the community property jurisdiction]”  become community property. In jurisdictions utilizing the equitable distribution doctrine, divisible marital property includes “all property, both real and personal, acquired by either spouse during the marriage.”  Jointly owned property is also considered marital property under both models.  Whether the title is held individually or in co-ownership form is not determinative,  but because the court may look at “any . . . factor necessary to do equity and justice between the parties,”  companion animals registered with both spouses as co-owners may be considered jointly owned.
In contrast to marital or community property are separate (in an equitable distribution jurisdiction) or non-community (in a community property jurisdiction) property. To have an item of property classified as separate or non-community, the presumption of marital or community property must first be overcome by meeting a clear and convincing evidence standard.  This is most easily achieved through a showing that the property in question was “acquired by one spouse before marriage, property acquired by gift, . . . inherited property,”  or acquired in exchange for separate property.  Absent a statutory exception, separate property is distributed to the owning spouse.  However, it is important to note that non-marital property can be transmuted into marital property through several methods,  including through unrestricted use of the property by both parties,  which is often the case with a marriage’s companion animals.
Aside from proof that the property meets one of the primary conditions of separate property, the presumption of marital property is rebuttable by a showing of special interest in the property by the spouse claiming that interest.  The methods by which this can be achieved vary depending on the statute under which the court is operating, but there are certain forms of evidence that would seem universally helpful in distinguishing a given estate’s marital and separate property. For example, the marital property presumption is rebuttable in Oregon by a showing that “both parties have [not] contributed equally to the acquisition of marital assets.”  The Animal Legal Defense Fund (A.L.D.F.) advises that a party seeking custody of a companion animal present to the court evidence such as proof that he is the one who adopted the animal, or that he is the one who purchased the animal.  Such evidence would seem sufficient to prove prior acquisition, and possibly gift or inheritance; it would likely also be helpful as a portion of proofs of further special interest. As another example, Nebraska’s marital property presumption can be exempted by a showing that “the spouse not owning the property prior to the marriage has significantly cared for the property during the marriage.”  The A.L.D.F. further counsels that the party seeking custody offer proof that she was the animal’s primary caregiver, such as “receipts for veterinary care, licensing records, receipts for grooming, dog training classes, food, and other items purchased for the companion animal,” or testimony from neighbors tending to show “consistent interaction,” such as that she was “always the one who walked . . . or took [the dog] to the park.”  In one case, an appellate court reversed the trial court’s decision that a divorcing couple’s dog was community, as opposed to separate, property that should be awarded to the husband.  In consideration of factors that the wife bought the dog with her own money, registered it in her name, and retained possession of it more than a year after separation, the court rejected any distinction between separate and community property in the case of the companion animal, and awarded it to the wife. 
The area of separate property in the form of gifts is a common area for exceptions to the rule, however. In the case of In re Marriage of Stewart , the trial court awarded the couple’s dog, which was a gift from the husband to the wife, to the husband, taking into account considerations that the dog accompanied the husband to the office and spent a substantial portion of each day with the husband.  The appellate court affirmed this decision on de novo review, stating that it “ha[d] considered the property division as a whole.”  In Dickson v. Dickson , the wife was awarded custody despite the fact that the dog had been given to the husband as a gift.  On the other hand, in what is probably one of the first reported cases involving companion animal custody upon divorce, the dog was awarded to the wife (who received it as a gift from her husband), despite the facts that the issue was never addressed in the initial divorce decree and that the husband had title to the dog. 
Personal property, in order to proceed with division under either model, next needs to have a monetary value assigned to it. The majority of jurisdictions require by statute that all property be valued before it is distributed in a divorce decree, and this valuation is within the court’s broad discretion.  One reason for this is that courts will sometimes employ a monetary or distributive award in addition to property division when it is not possible to divide the property in kind,  or a buy-and-sell between the parties,  a concept that could surely be relevant in creating a property settlement between divorcing parties concerning their companion animal. This is a particularly difficult undertaking when dealing with a companion animal, for which there is no second-hand market to assist the court in establishing its value.  The traditional method for assigning valuation to companion animals is fair market value, which also accounts for “[a]ny special value, particular qualities, or capabilities[.]”  “Anything that affects commercial value may be considered[,]” including “the pedigree of the animal; the purchase price of the animal and the sale price of its littermates; the special abilities or training of the animal, also prizes and awards; the age and the general health of an animal; [and] the fact that the animal was pregnant.” 
Several alternatives have been contemplated in the companion animal arena, generally in response to the fact that such an animal’s fair market value is sometimes very low, or even zero.  Some courts have calculated a companion animal’s value based on the actual value of the companion animal to its human caretaker:
In determining the actual value to the owner, it is reasonable to take into account the services provided by the dog. Where, as here, there may not be any fair market value for an adult dog, the “value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce.” Thus, an owner may seek reasonable replacement costs- including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training. Or an owner may seek to recover the original cost of the dog, including the purchase price and, again, such investments as immunization, neutering, and training. Moreover, as some courts have recognized, it may be appropriate to consider the breeding potential of the animal, and whether the dog was purchased for the purpose of breeding with other purebreds and selling the puppies. 
Another valuation method takes into account the companion animal’s intrinsic value, which focuses on the animal as an individual, but in actuality is based on the value to the human guardian.  In Houseman v. Dare , the court recognized a former couple’s dog’s intrinsic monetary value at $1,500, but also recognized that the dog represented a “special value” for which the monetary amount presented inadequate compensation. 
The court is free to utilize any reasonable valuation method; however, no matter which method is employed, evidence must appear on the record to support it.  If no such evidence is presented, the court is prohibited from performing a property valuation  - “[t]he . . . valuation cannot be based on mere guesswork.”  The burden is on the parties to present such evidence, although the court may reject any it chooses.  It is in the best interest of the parties to submit such evidence, as “[a] trial court does not abuse its discretion by adopting the only [un-contradicted] valuation submitted by [either one of] the parties.” 
Before making a decision as to the proper division of marital property, a court will look to whether the parties have reached any property division agreements or stipulations between themselves before making its own decree, which will usually encompass that agreement. Property settlement agreements between the spouses are accorded great weight and will ordinarily be upheld.  However, “[a]s a general rule, in divorce proceedings, the court is not bound by a property settlement agreement between the spouses, but has jurisdiction to consider its validity and fairness, and, if the facts justify such action, may disapprove or modify it;” in the event that the agreement is in contrast to the court’s decree, the decree controls.  Once the agreement is judicially approved or is merged into the divorce decree, it becomes binding  and enforceable as a court order;  conversely, if the agreement is not merged into the decree, the property rights conferred by the agreement remain contractual in nature.  If parties prefer the agreement to be treated as a contract in order to retain traditional contractual remedies, “they may do so by entering into an agreement and identifying which, if any, of the terms of their agreement they wish to have the court incorporate into the judgment and which terms they wish to have survive as separate agreements.” 
Aside from those agreements made directly in contemplation of divorce, the parties may have created an ante-nuptial agreement. These are enforceable and construed according to contract theory, and so must mention divorce in order to apply in a divorce.  Ante-nuptial agreements are as binding as the post-nuptial agreements mentioned above, and subject to similar considerations.  The Bar Association of San Francisco recently hosted a panel concerning companion animal custody disputes, reported by A.L.D.F.: “[O]n the panel was attorney Lisa McCurdy, who emphasized some ways that couples might attempt to avoid litigation, including ‘pet premarital agreements,’ a prenuptial agreement that would specify how custody would be determined in the event of a breakup. Such agreements are rare, but are contracts that would generally be recognized by courts.”  Professor Rebecca J. Huss has also pointed out that, while public policy prevents ante-nuptial agreements from limiting the rights of children, “there is no prohibition on the allocation of legal rights in animals in a contract[,]” as animals are considered property. 
Because these agreements are based in contract law, one court has even enforced specific performance based on an oral agreement between a former couple; the court held that the girlfriend could keep the couple’s dog because her boyfriend told her she could have the dog when he ended their relationship. That court also held that judges can decide companion animal custody based on unique sentimental value (as in the case of heirlooms, family treasures, and works of art) beyond the animal’s commercial value. 
Finally, when the couple is unable to reach an agreement themselves, or when the court determines that their agreement is improper, the court instead will divide the remaining property.  Taking into consideration all of the above factors, the court will usually divide the marital estate according to either the half-and-half split of community property states, or what it considers to be fair and equitable in an equitable distribution state. In one case, such a decree awarded “some poodle dogs,” without any further comment, to the wife.  However, “[s]ome statutes require the court to decree some division of the spouses’ property on divorce or dissolution of marriage; under other statutes, the parties must take some action [such as making an application or instituting a proceeding] before the court is required to rule.”  Once the final decree is entered by the court, it is enforceable “by appropriate process, action, or proceeding,”  sometimes including contempt proceedings.  At that point, the decree becomes difficult to modify; for example, custody decrees usually require a change in circumstances.  In one companion animal custody case, the court pointed out that because the couple’s agreement to share custody had been incorporated into the divorce decree, it was final and could only be modified through statutorily prescribed avenues. 
III. NEW DIRECTIONS IN COMPANION ANIMAL CUSTODY DISPOSITION
Because our lawmakers are elected by the populace, it would make sense that laws passed should reflect the current societal attitude. As pertaining to the treatment of companion animals, the atmosphere amongst the public is changing. The National Pet Owners Survey indicates that 62% of United States households own a companion animal in 2009 and further statistics indicate $45.4 billion in total United States pet industry expenditures are estimated to occur in 2009 ($43.2 billion was spent in 2008).  45% of dog caretakers report that they take their dogs on vacation with them, and “more than half of companion animal owners would prefer a dog or cat to a human [as a companion] if they were stranded on a deserted island.”  With so much of our time and money invested in our companion animals, it is no wonder that many people are dissatisfied with the current, straight-property analysis to determination of the animal’s custody. Further emphasis is placed on the disconnect by the media: there are reports of celebrities fighting over or sharing custody of companion animals,  and articles addressing the phenomenon have appeared in a wide variety of publications. 
Additional reasoning for the societal trend away from the property model lies in the changing family structure of Americans: human families are smaller than in the past, last less time (with divorce being more common than in the past), and some households are substituting companion animals for human children.  The head of a non-profit family dispute resolution firm recently commented that companion animals have taken on a more significant role in families due to the lower birth rate, “[s]o when a relationship splits up, then the pets are as important as the kids . . . . The pets have historically gone with the children but there are now more couples without children who have pets so then it becomes an issue of which adult gets the pet.”  It also bears mentioning that, just as is sometimes the case with children, some parties may seek to use the companion animal in a divorce case as a tool for hurt or negotiation.
B. Judicial Developments in the Field of Companion Animal Custody Determination
Based on these sorts of considerations, some divorcing couples have already attempted to resolve such issues in the courtroom. These bids are not always successful; indeed, one judge stated in response to such a case that
[T]hat is just not a justiciable issue in my opinion. Go out and buy another dog. Someone should compromise. But to take up a judge’s time when there are children to be cared for and support to be enforced, don’t ever bring a stupid issue like that before me. 
However, a number of judges have begun to reject the strict property analysis directed by the law that applies to dogs and sofas alike, although there is no direct basis in the law for the departure. Following is a review of such cases, divided by the heading under which their precedent is most impactful, though many case holdings include a combination of approaches.
1. Best Interest Approach to Deciding Companion Animal Custody
In determining which parent retains custody of children after a divorce, all states require the court to consider what is in the best interest of that child.  The first inquiry in this process is into the parent’s “fitness;” “unfitness” has been defined as “ personal deficiency or incapacity which has prevented, or possibly will prevent, performance of reasonable parental obligations in child rearing and which has caused, or probably will result in, detriment to a child's well-being.”  The issues to be weighed vary by jurisdiction, but generally consist of a list including items such as “the wishes of the child and the parent or parents, the interaction and relationship of the child with the parent, siblings, and any other person who may significantly affect the child’s best interest, the mental and physical health of all individuals involved, and the child’s adjustment to home, school, and community.”  Several jurisdictions also include a primary caretaker test in such inquiries, accounting for which natural or adoptive parent had been primarily responsible the caring and nurturing duties of a parent.  Also part of the best interest inquiry, Professor Rebecca J. Huss refers to the presumption that siblings should be kept together, and its possible impact on companion animal custody cases.  Professor Huss cited to one case that took into account “whether the separation of two dogs would have any emotional effect on the animals,” and included a court order for a veterinarian to perform an examination to determine the answer. 
Some parties have advocated such an approach in determining custody of companion animals, with some specific species-based modifications to the child best interest model.  The A.L.D.F. has filed amicus briefs advocating the best interest approach in some cases.  Along these lines, they offer the following as advice on the website:
In determining who should be awarded custody, the court may want to consider which party has paid attention to the animal’s basic daily needs (food, shelter, physical care, exercise, grooming, flea control); who takes the animal to the veterinarian; who provides for social interactions (in the case of dogs) with other dogs and/or with people; who maintains appropriate supervision to assure that state and local regulations are complied with (licensing, not allowing the dog to run free and protecting against circumstances that would endanger her life or health); and who has the greatest ability to financially support the animal. 
Most courts have rejected such a model, basing their reasoning on the property status of companion animals. “A dog is personal property and while courts should not put a family pet in a position of being abused or uncared for, we do not have to determine the best interests of a pet.” 
On the other hand, while the analysis has differed from the traditional model (employing no factored test), some courts have, in a round-about way, certainly allowed the companion animal’s best interest to enter their decisions as to which human caretaker should be awarded custody.
- In Pratt v. Pratt , the court held that the best interest standard for children is inapplicable to dogs, but stated that the trial court can take into account the past mistreatment of the dogs. 
- In Vargas v. Vargas , a court awarded custody of the couple’s dog to the wife after considering testimony that the husband was not treating the dog very nicely and the facts that the husband’s home included both a scrap metal yard and a five-year-old child, despite the fact that the dog was a gift from the wife to the husband and the dog was registered to the husband with the American Kennel Club (A.K.C.). 
- In Juelfs v. Gough , the divorcing couple had agreed to a shared custody and visitation schedule for their dog, which the lower court initially granted. However, because the dog was being put in danger by fights with the wife’s other dogs and for reasons of contention between the two parties, it revoked the order. The wife appealed to the state’s Supreme Court, which agreed with the lower court and found no abuse of discretion in the revocation. 
- In a widely publicized Texas case, the court hearing the custody battle over a Gigi, a dog belonging to Dr. Stanley and Linda Perkins, considered such evidence as a canine bonding study and a “Day in the Life of Gigi” video. 
2. Visitation and Shared Custody Arrangements of Companion Animals
Just as parents share custody of their children or have scheduled visitation time, some parties have argued for such a solution regarding their companion animals. “In a divorce action, there is no requirement that the joint ownership of property by the parties be abolished and that title be vested in only one spouse.”  On the other hand, it is important to consider that one of the goals of property division in divorce is final separation of the parties.  Courts often reject requests for shared custody or visitation of companion animals, citing reasoning such as a lack of statutory authority to support shared custody of personal property,  hesitation to “open the floodgates” or judicial economy,  and the problems that would be presented in attempting to enforce such a decree (consider methods of enforcement and which agency would take responsibility for ensuring proper participation by the parties).  Courts are also required to enforce visitation orders (through an injunction or restraining order, but not through damages,  and sometimes also by suspending the violating parent’s visitation rights  ) involving children,  which may add to judges’ hesitancy to create such an order for a companion animal, considering the complications required enforcement would effect. For example, in Sullivan v. Ringland , a couple owned a dog jointly at the time of their divorce,  which should have classified the dog as divisible property. Instead of awaiting the court’s decree as to custody of the dog, the husband gave it away to a friend; the court refused to proceed with the wife’s replevin action.  Although some courts have successfully incorporated such an agreement into the divorce decree, many courts adopting this approach have subsequently had to modify the order. Some couples adamant upon this approach but rejected by the court due to lack of legal authority have been successful in drawing up agreements for custody and visitation outside of court,  leaving contractual remedies available.
- A lively case, that of Lanier v. Lanier in Pulaski, Tennessee involved a wife arguing for custody of a divorced couple’s dog based on evidence that she had kept him away from “ill-bred bitches,” ensured that he attend a weekly ladies’ Bible class, and prevented others from drinking alcohol in his presence; the husband argued for custody based on the facts that he had taught the dog numerous tricks, including to ride on the back of his motorcycle, and had himself refrained from drinking beer in front of the dog.  The judge granted joint custody of the dog, ordering a switch in custody every six months (an order the wife violated by moving to Texas); for this case, the judge received national attention, including a segment on the television program 20/20. 
- In Juelfs v. Gough , the husband and wife had agreed to shared ownership of their dog, which the lower court incorporated into its order.  Based on danger the dog faced by other dogs in the wife’s home and increased contention between the parties, the lower court next gave the husband custody with an order for the wife’s visitation, and finally awarded sole custody to the husband.  The state’s Supreme Court affirmed the modified order, stating that, “The arrangement between Julie and Stephen assumed a set of facts, namely, cooperation between them, that proved not to exist, requiring judicial intervention.” 
- In Bennet v. Bennet , the trial court awarded the wife visitation of the dog, but the appellate court overturned the order based on the fact that the trial court lacked authority to order visitation with personal property, and remanded that the dog be allocated according to the state’s equitable distribution doctrine.  The court there further illuminated its holding with comments that it was concerned with judicial economy: “Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility with animals.” 
- In Desanctis v. Pritchard , the trial court dismissed a couple’s complaint asking it to enforce a settlement agreement that provided for shared custody of the dog, and the appellate court upheld the dismissal with comments that “[a]ppellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or lamp,” and that “any terms set forth in the [a]greement are void to the extent that they attempt to award custodial visitation with or shared custody of personal property.” 
- The court in Nuzzaci v. Nuzzaci refused to sign an stipulation and order (prepared by the parties and signed by each of them and their attorneys) concerning visitation of the divorcing couple’s dog, stating that the court can only award the dog in its entirety to one party or the other, advising the couple to come to their own agreement, and reasoning that the court has no jurisdiction in the matter and further no way to side with one party or the other in the event of a future dispute. 
- The court bestowed special status upon companion animals in divorce proceedings in Arrington v. Arrington , classifying them as personal property but for which visitation should be allowed. 
- While the wife retained primary custody of the divorcing couple’s dog in the case In re Marriage of Fore , “the husband was granted access ‘with/to Rudy during the first seven days of every month.’ 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.’”  This arrangement was unsuccessful, resulting in “an ex parte order requiring the county sheriff to pick up Rudy from the husband and return him to the wife.” 
- “Just as with visitation schedules with children, people can also structure their visitation with pets to occur during a block of time during the year. In Assal v. Barwick , the husband was given a thirty day visitation period during each summer.” 
- In the case In re Marriage of Tevis-Bleich , the couple had agreed to a divorce settlement granting the husband visitation of their dog, which agreement the court incorporated into its order.  The wife later sought to have that provision removed, but the trial court stated that it lacked jurisdiction for such a modification, which the appellate court affirmed, leaving visitation intact. 
- In Fitch v. Eiseman , the trial court incorporated into the divorce decree the couple’s agreement for the dogs to remain with the children, which involved travel between the parties’ homes as part of the children’s shared custody agreement; when the wife failed to abide by the agreement, the state Supreme Court remanded the matter to the trial court to determine sole ownership by one of the parties. 
3 . Monetary Support Paid to the Custodial Guardian, or “Petimony”
The divorce case law is very limited in relation to this matter, but this is most likely based on the fact that many parties are entering into private contracts when agreeing to such compensation. The inability of property law statutes to contemplate support for personal property “has led to written agreements over . . . support being drawn up out of court.”  “Lawyers [are] reporting that the number of cases is growing although there are no figures to quantify this growth as most cases do not go to the courts. Many couples manage to work out their own agreements for their pets or use mediators. . . . Lawyers said it was impossible to know how many petimony contracts were being drawn up with most done outside the courts.”  In fact, Professor Kathy Hessler advocates mediation as opposed to litigation in animal law matters.  One example from the case law is Dickson v. Dickson . There, the divorcing parties agreed to shared custody of the dog, and the husband “was ordered to pay up to $150 per month for the dog’s care and maintenance,”  although the order was later “modified due to a material change in circumstances that rendered the original order inequitable.”  In connection with children, failure to provide for support in the divorce decree does not bar subsequent proceedings against such persons as might be liable for their support;  if the law for companion animals continues to expand in the direction of children, this rule could serve as an inducement for parties to agree to such compensation.
IV. FURTHER CONSIDERATIONS IN THE FIELD OF COMPANION ANIMAL CUSTODY
While the atmosphere is developed in the expanding area of companion animal custody disputes, advocates, lawmakers, and judges will need to face several confronting questions, largely divisible into two main categories. One set of inquiries focuses on the human aspect of the problem- the character of the relationship between the parties; the other set centers on the nature of the companion animal itself.
A. “Qualifying” Relationships: Who Should Benefit from the Field’s Development?
What should the courts do if the couple is not married? Will the same rules developed for married couples apply to unmarried ones? This would include considerations of lesbian, bisexual, gay, and transgender (L.B.G.T.) couples, “common-law” couples (those who would fall under common-law marriage but who live in a state that does not recognize the classification), live-in couples (those romantically involved but who have not lived together long enough to be established as common-law husband and wife), and roommates. Some such cases have already been presented to the courts, but have certainly not addressed all of the difficulties they offer. For example, the case Houseman v. Dare centered around a live-in couple who had been involved in a thirteen year relationship, and the court in that case did not distinguish their situation from that of a married couple.  The issue of roommates disputing companion animal custody was presented in both Zovko v. Gregory and Raymond v. Lachmann . In Zovko , the court granted custody of the cat based on its best interests “and awarded the cat to the roommate who had actually taken care of” it.”  In Raymond , the lower court had allowed visitation but subsequently determined that it was not in the cat’s best interest to be shuffled between the parties so awarded to one under a strict property analysis. The state’s Supreme Court awarded the cat to the opposite party and stated that it was "best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.” 
Of obvious necessity in developing this area of the law is to seek solutions to the problems that judges have cited for their unwillingness to expand it. One such issue is that of judicial economy- it is easy to imagine divorced couples who will return to the courts repeatedly when unable to keep the agreement peaceably. Another concern is the desire to avoid “opening the floodgates,” and wanting to avoid couples who will take advantage of the new precedents as means of leverage or cruelty. Courts have also cited enforcement as a potential topic of concern, asking which agency will be responsible for monitoring the arrangements or determining whether the companion animal’s best interest will be met. Finally, the lack of statutory authority is also problematic to numerous judges.
B. Which Species Are “Worth It”?
Which species will be protected by the development of the law in the area of companion animal custody? Although the majority of case law is limited to dogs and sometimes cats, courts have seen people willing to go to battle over custody of companion birds  and even frogs.  If the laws are expanded, should they be limited to companions of the canine and feline persuasion? Other animals are viewed differently under the law (for example, agricultural animals are even excluded from the anti-cruelty statutes of most states  ), but certainly companion animals are not limited to only cats and dogs. Justification in the limitation might lie in considerations such as the cost of procuring and keeping a given species as compared to the cost of litigation or even a pro se hearing, the expected lifespan of the animal (the frog mentioned above died before its case could be decided), or its capacity for replacement. Take the macaw as an illustration. Case law concerning custody disputes over them is limited, but the previously listed considerations seem to indicate their inclusion as companion animal custody law expands. Consider their cost in terms of both purchase price and maintenance expenditures, their fifty year lifespan, and their individualized personality and learning ability. On the other hand, the resources of the judiciary might be better spent than on custody disputes over a frog found in the backyard that lives in a bowl, eats flies and never requires veterinary visits, which might live two or three years, and exhibits no uniqueness of personality. Still, it would be a difficult job to tell someone that their beloved companion is not worth the time or expense it presents to the legal system.
A final consideration is that of limitations: where do we draw the line in companion animal custody cases? This question is brought into sharp relief by the Scully suit, in which a divorced couple are each contending for “custody” of frozen dog sperm.  While the judge in that case has ruled that the issue is not a divorce matter and referred it instead to civil court, the possibilities for future bizarre cases are quite unbounded.
Companion animals are becoming increasingly significant in the lives of the American people, and their status in the law as property seems to be inadequate to deal with the custody issues presented in our court systems. While there is certainly room within the current parameters for the clever advocate to make novel and successful arguments for his case in attempting to obtain custody of a companion animal, there is much growth required before a uniform and acceptable system can be created. Our legal system is bounded by constraints stemming from its categorization of the animal as personal property. The inconsistency of success in cases where the courts are willing to expand their focus, as well as unresolved questions, could easily be a deterrent factor in the success of attempts to expand the boundaries of companion animal custody law. However, the creative advocacy and precedent formation of today will be a most important tool in meeting with success in the future.
As for Charlie, it is hopeful that the Johnsons will look beyond their own desires and do what is in his best interest- whether the result is a shared custody arrangement worked out between the couple’s lawyers outside of court or a judge’s order that Charlie remain in his old backyard with visits and veterinary costs provided by the departing spouse. The Arrington court may have best stated the true heart of the matter:
We . . . hope that both Arringtons will continue to enjoy the companionship of [their dog] Bonnie Lou for years to come within the guidelines set by the trial court. We are sure there is enough love in that little canine heart to “go around.” Love is not a commodity that can be bought and sold or decreed. It should be shared and not argued about. 
 This discussion is limited to the state of, and trends in, only the American jurisprudential system. Also, while companion animals may include a wide variety of species, the majority of case law relating to and impacting the issue concerns dogs and sometimes cats. I use the term companion animal to indicate an animal which is associated with a human guardian or caretaker (sometimes referred to as owner) in that human’s day-to-day life; this term is often replaced by the courts with the word “pet.” Finally, I refer to the divorcing couple as husband, wife, spouses, and sometimes parties, but have eliminated the prefix “ex-” to avoid clutter and confusion.
 County of Pasco v. Riehl , 620 So.2d 229, 231 (Fla. Dist. Ct. App. 1993) (internal citations omitted).
 Note then, that “custody,” as used in this sense and throughout this discussion in reference to companion animals, is a fictitious term, and indicates in actuality an award by the court of personal property.
 27B C.J.S. Divorce § 879 (2009). See, e.g., Falkenstein v. Falkenstein, 854 A.2d 749, 753 (Conn. App. Ct. 2004) (“[A] trial court has no inherent power to transfer martial [sic] property and . . . any transfer it orders must be founded on an enabling statute.”).
 27B C.J.S. Divorce § 872 (2009). See, e.g., Quasius v. Quasius , 866 A.2d 606, 607 (Conn. App. Ct. 2005) (“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.”).
 Unif. Marriage & Divorce Act § 307 (a) [Alternative A], 9A U.L.A. 238-39 (1987) (amended 1973).
 Unif. Marriage & Divorce Act § 307 [Alternative B], 9A U.L.A. 238-39 (1987) (amended 1973).
 27B C.J.S. Divorce § 857 (2009) (discussing separate property in community property jurisdictions) ( see Ariz. Rev. Stat. Ann. § 25-318 (A) (2008)); 24 Am. Jur. 2d Divorce § 477 (2009) (discussing separate property in equitable distribution jurisdictions) ( see Mich. Comp. Laws Ann. § 552.19 (West 2005)).
 27C C.J.S. Divorce § 939 (2009). See , e.g ., Sexton v. Sexton , 125 S.W.3d 258, 266 (Ky. 2004) (stating in an equitable distribution jurisdiction that “[a] party claiming that property, or an interest therein, acquired during the marriage is nonmarital bears the burden of proof.”); Roach v. Roach , 672 S.W.2d 524, 529 (Tex. Ct. App. 1984) (stating in a community property jurisdiction that “there is the presumption, albeit rebuttable, that property possessed by either spouse during or on dissolution of the marriage is community property[.]”).
 27B C.J.S. Divorce § 860 (2009) (internal citations omitted). Cf. In re Marriage of Goforth , 459 N.E.2d 1374, 1381 (Ill. App. Ct. 1984) (“Property acquired after marriage . . . is generally presumed to be marital property.”).
 Id . See, e.g., Montgomery v. Montgomery , 358 N.W.2d 169, 172 (Minn. Ct. App. 1984) (“[P]roperty is presumed to be marital property regardless of whether title is held individually or in some form of co-ownership.”).
 C.J.S.§ 879, supra note 7. See, e.g., In re Marriage of Reese , 155 S.W.3d 862, 872 (Mo. Ct. App. 2005) (“The list of five factors found in [the state’s dissolution statute] does not include [a particular] item, but the list is not exhaustive.”).
 C.J.S. § 939, supra note 23. See Browning v. Browning , 551 S.W.2d 823, 825 (Ky. Ct. App. 1977) (“The burden is on the Appellant to prove by clear and convincing proof that he acquired his interest by gift.”).
 27C C.J.S. Divorce § 940 (2009). See Southerland v. Southerland , 598 S.E.2d 442, 444 (Ga. 2004) (“The party claiming a right, including property division, has the burden of proof to establish that right.”).
 What To Do If You Are Involved In A Custody Battle Over Your Companion Animal, http://www.aldf.org/article.php?id=239 (last visited July 25, 2009).
 What To Do , supra note 37.
 Ballas v. Ballas , 3 Cal. Rptr. 11, 12 (Cal. Dist. Ct. App. 1960).
 Id .
 In re Marriage of Stewart , 356 N.W.2d 611, 612-13 (Iowa Ct. App. 1984).
 Id .
 Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals , 74 U. Colo. L. Rev . 181 n.282 (Winter 2003) (citing Dickson v. Dickson , No. 94-1072 (Ark. Garland County Ch. Ct. Oct. 14, 1994)).
 Akers v. Sellers , 54 N.E.2d 779, 779-80 (Ind. Ct. App. 1944) (but note that the language of the court seems to support awarding the dog to the appealing husband).
 27B C.J.S. Divorce § 868 (2009). See, e.g., In re Marriage of Garcia , 638 P.2d 848, 849 (Colo. Ct. App. 1981) (“In a dissolution action it is the responsibility of the trial court to assess the value of the parties’ property. . . . [A]nd, the trial court’s disposition of the property will not be disturbed on review unless there has been an abuse of discretion.”).
 27B C.J.S. Divorce § 896 (2009). See Calia v. Calia , 624 S.W.2d 870, 872 (Mo. Ct. App. W.D. 1981) (“A court may order cash payments . . . when it is impossible or imprudent to divide a piece of property in kind.”) (internal citations omitted).
 27B C.J.S. Divorce § 891 (2009). See In re Marriage of Goodding , 677 S.W.2d 332, 339 (Mo. Ct. App. W.D. 1984) (“[T]he court . . . may not only order a sale, but can decree an exchange or conveyance, or other dispositions- either between the spouses or with a third person.”) (internal citations omitted).
 Mitchell v. Heinrichs , 27 P.3d 309, 313-14 (Alaska 2001) (internal citations omitted).
 Favre, supra note 2, at 145. See also Hoebelheinrich v. Hoebelheinrih , 600 S.E.2d 152, 155 (Va. Ct. App. 2004) (stating that some courts “look to the intrinsic value of the property to the parties to measure value for equitable distribution purposes”).
 Houseman v. Dare , 966 A.2d 24, 29 (N.J. Super. Ct. App. Div. 2009).
 C.J.S. § 868, supra note 46. See Collins v. Collins , 104 P.3d 1059 (Mont. 2004) (“The court is free to adopt any reasonable valuation of marital property which is supported by the record. . . .”).
 Id . See Amsbaugh v. Amsbaugh , 673 N.W.2d 601, 607 (N.D. 2004) (“The value given to marital property by the courts depends on the evidence presented by the parties.”); Svejda v. Svejda , 156 S.W.3d 837, 840 (Mo. Ct. App. W.D. 2005) (“A trial court, in dividing marital property at divorce, is prohibited from assigning value to property when that value is not supported by any evidence at trial.”).
 27C C.J.S. Divorce § 928 (2009). See Luedde v. Luedde , 211 S.W.2d 513, 517 (Mo. Ct. App. 1948) (“[W]hen a court does adopt such a stipulation and embodies it in the judgment entered by the court . . . , . . . the judgment is then . . . valid and binding on the parties. . . .”).
 27C C.J.S. Divorce § 930 (2009). See Schoonover v. Schoonover, 172 F.2d 526, 529 (10th Cir. 1949) (“[If] the contract is not merged into the decree . . . the rights of the parties thereafter are controlled by the contract and any action to enforce such rights must be based upon the contract . . . .”).
 27C C.J.S. Divorce § 933 (2009). See Osborne v. Osborne , 428 N.E.2d 810, 816 (Mass. 1981) (“[A]ntenuptial agreements . . . should be binding on the courts to the same extent as postnuptial separation agreements.”).
 Lisa Franzetta, To Have and To Pet… (Jan. 21, 2009), http://aldf.org/article.php?id=816 (last visited July 25, 2009).
 Houseman , supra note 55, at 27-29.
 C.J.S. § 927, supra note 61. See Dobesh v. Dobesh , 342 N.W.2d 669, 671 (Neb. 1984) (“If the agreement is not unconscionable it is not binding, and the court may make orders for the disposition of the property and maintenance.”).
 Riley v. Riley , 131 So.2d 491, 495 (Fla. Dist. Ct. App. 1961).
 27B C.J.S. Divorce § 847 (2009). See, e.g., McCormick v. McCormick , 562 N.W.2d 504, 508 (Mich. Ct. App. 1997) (“Where a circuit court has jurisdiction to grant a divorce, it is mandatory that the same court dispose of the related matters of alimony, support, and property.”) (discussing Michigan statute).
 27C C.J.S. Divorce § 949 (2009). See Hipps v. Hipps, 597 S.E.2d 359, 362 (Ga. 2004) (“[I]f [one party] fails to [follow a requirement of the trial court], [the other party] is entitled to take the necessary steps to ensure [the first party’s] compliance.”).
 Juelfs v. Gough , 41 P.3d 593, 594, 594-95, 596 (Alaska 2002).
 American Pet Products Association Industry Statistics & Trends, http://www.americanpetproducts.org/press_industrytrends.asp (last visited July 25, 2009).
 William C. Root, ‘ Man’s Best Friend’: Property or Family Member? An Examination of the Legal Classification of Companion Animals and Its Impact on Damages Recoverable for Their Wrongful Death or Injury , 47 Vill. L. Rev. 423, 423 (2002).
 Pauline Askin, Forget the Cutlery! It’s Pets Making Divorces Bitter , Reuters, Apr. 24, 2008, http://www.reuters.com/article/lifestyleMolt/idUSSYD28703020080424?pageNumber=1&virtualBrandChannel=0 (last visited July 25, 2009).
 Huss , supra note 44, at 229.
 Id . (citing William C. Lhotka, Divorce Leads to Dog Fight (Dec. 4, 1992), http://www.thecarsonlawfirm.com/new_page_15.php (posted from article appearing in the St. Louis Post-Dispatch) (last visited July 25, 2009)).
 See Ann Harwell Britton, Bones of Contention: Custody of Family Pets , 20 J. Am. Acad. Matrim. Law. 1, 35 (2006) (advocating a point system approach, accounting for both property-like and child-like characteristics).
 For a hypothetical A.L.D.F. amicus brief based on an actual case, see http://www.divorce360.com/divorce-articles/child/custody/friend-of-court-brief-animal-defense-fund.aspx?artid=286 (last visited July 25, 2009).
 Lawyers Must Plan for More Pet Custody Cases, http://aldf.org/article.php?id=308 (last visited July 25, 2009).
 Stewart , supra note 42 at 613.
 Pratt v. Pratt , No. C4-88-1248, 1988 WL 120251, at *1 (Minn. Ct. App. Nov. 15, 1998).
 Vargas v. Vargas , No. 0551061, 1999 WL 1244248, at *8, *10, *13 (Conn. Super. Ct. Dec. 1, 1999).
 Juelfs , supra note 78, at 599.
 Alex Roth, Injustice Page, http://www.familylawcourts.com/countysanjosejudge.html (posted from article appearing in the San Diego Union-Tribune) (last visited July 25, 2009).
 Desanctis v. Pritchard , 803 A.2d 230, 232 (Pa. Super. Ct. 2002), appeal denied , 818 A.2d 504 (Pa. 2003).
 Bennett v. Bennett , 655 So.2d 109, 110 (Fla. Dist. Ct. App. 1995).
 Id . at 110-11.
 27C C.J.S. Divorce § 1044 (2009). See Robbins v. Robbins , 460 So.2d 1355, 1357 (Ala. Civ. App. 1984) (“Due to the father’s . . . clear disregard of the court’s custody order, we cannot say that the trial court abused its discretion in ‘suspending’ the father’s visitation rights.”).
 Sullivan v. Ringland , 376 A.2d 130, 131 (N.H. 1977).
 Id .
 Askin , supra note 81.
 Jim T. Hamilton, Dog Custody Case Attracts Nationwide Attention, in Tales From Tennessee Lawyers 180, 180-81 ( William Lynwood Montell ed., 2005), this portion available at http://www.kentuckypress.com/0813123690excerpt.pdf (last visited July 25, 2009).
 Id . at 181-82.
 Juelfs , supra note 78, at 594-95.
 Id . at 595.
 Id . at 597.
[ 116] Bennett , supra note 103 at 110-11.
 Id .
 Desanctis , supra note 102, at 231-33.
 Nuzzaci v. Nuzzaci , No. CN94-10771, 1995 WL 783006 at *1-*2 (Del. Fam. Ct. Apr. 19, 1995).
 Arrington v. Arrington , 613 S.W.2d 565, 569 (Tex. Civ. App. 1981).
 Huss , supra note 44, at 224 (citing In re Marriage of Fore , No. DW 243974 (Minn. Dist. Ct. Nov. 9, 2000)).
 Id . (citing Fore v. Mathews , No. DW 243974 (Minn. Dist. Ct. Jan. 9, 2001)).
 Id . (citing Assal v. Barwick , No. 164421 (Md. Cir. Ct. Dec 3, 1999)).
 In re Marriage of Tevis-Bleich , 939 P.2d 966, 967 (Kan. Ct. App. 1997).
 Id . at 967-69.
 Fitch v. Eiseman , No. S-9322, 2000 WL 34545801, at *1-*2 (Alaska Apr. 19, 2000).
 Askin , supra note 81.
 Id .
 Huss , supra note 44, at 223 (citing Dickson v. Dickson , No. 94-1072 (Ark. Garland County Ch. Ct. Oct. 14, 1994)).
 Id . (citing Anderson v. Dickson , No. 94-1072 (Ark. Garland County Ch. Ct. July 30, 1996)).
 Houseman , supra note 55, at 25.
 Huss , supra note 44, at 226 (citing Zovko v. Gregory , No. CH 97-544 (Va. Circuit Ct. Oct. 17, 1997).
 Raymond v. Lachmann , 695 N.Y.S.2d 308, 308 (N.Y. App. Div. 1999).
 Lhotka , supra note 91.
 L.L. Brasier, Battle Over Frozen Dog Sperm Gives Judge Pause , Detroit Free Press (Apr. 8, 2009), archived at http://www.mlive.com/newsflash/index.ssf?/base/national-0/123924175576780.xml&storylist=newsmichigan (last visited Apr. 9. 2009).
 Arrington , supra note 120, at 569.