by Jill H. Breslau

“He might be cute and he might be furry, but he’s still property.” — Trial judge in a New Jersey divorce case

Reported cases may not reveal the degree to which pet disputes are part of divorce.  But consider these statistics.  Approximately one of every two marriages in the United States ends in divorce every year.  Of divorcing people, thirty percent own at least one dog and thirty-four percent own at least one cat.

Although people often consider their pets to be their children, or at least, like children, the law generally doesn’t see it that way.  When you divorce, your dog or cat is considered personal property.  Courts ordinarily will not arrange a schedule for access with a pet.  As a Pennsylvania judge stated, “Appellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp.”

While this perception may be distressing—after all, our pets are sentient beings; they express love and loyalty, and we love them, too–some commentators think dealing with pets as property is less complicated and frustrating than accomplishing good outcomes by using a child custody model, which refers to the “best interest of the child,” as the standard.

Courts can determine who will own a pet, not only by considering who paid for the pet, but who has cared for it, walked and fed it, trained it and spent time with it.  And divorce courts have stated that one goal is to make sure that a family pet will be kept safe and free from abuse and abandonment.

On the other hand, a New Jersey court, while declaring that pets are not children, and adhering to the notion that there is no “best interest of the dog” standard, has ordered that a separating couple alternate possession of their dog on a regular basis. This outcome suggests that, at least in New Jersey, a court can order “shared possession” of a pet—as long as it isn’t called “custody.”

And here in Maryland, the St. Mary’s County Circuit Court ordered a husband and wife to rotate custody of their dog every six months.  But this is the exception and not the rule.

Mary Louise Davis married John Franklin Davis, Jr. in 1958.  Sixteen years and three children later, Mrs. Davis, together with her six-year-old daughter Leigh, left the marital home and moved into an apartment.  Mr. Davis filed for divorce in Maryland on the ground of his wife’s adultery, and asked for custody of the children.

Judge Latham, after a custody investigation and a hearing, awarded custody of Leigh to the mother.  The father appealed to the Court of Special Appeals, which reversed the judge.  The Court said the father should have custody of Leigh because the mother had failed to show repentance for her adultery.

The mother appealed to the Court of Appeals.  The Court of Appeals held:

“Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare.”

The Court said the primary determination was the best interest of the child.  In determining this, Judge Latham had taken into account that Leigh had been living with her mother alone for the past two years and was adjusted to this arrangement; that she was doing well in school and was adequately provided for at home; that even though Mrs. Davis had engaged in adulterous conduct in the past, there was no  showing that it had ever deleteriously affected Leigh; and that Mrs. Davis had engaged in no sexual misconduct since February 1975.

So Leigh got to stay with her mother.

Davis v. Davis, 280 Md. 119; 372 A.2d 231 (1977)

Nelson A. Garcia will present Divorce Legal Seminar in Spanish at the Commission for Women’s Counseling and Career Center in Rockville Maryland on October 13, 2009, from 6:00 to 9:00 pm.  This seminar will help you to learn the different aspects of the process of separation and divorce. You will learn how to choose an attorney, how property is distributed, and how to get a restraining order, in case of domestic violence. How to obtain custody and alimony for your children will also be discussed. At the end of the session, you will have the opportunity to ask questions.  The cost is $30.  Here is the seminar announcement in Spanish.

SUS DERECHOS LEGALES EN EL DIVORCIO:

RESUMEN GENERAL Y TEMAS RELACIONADOS CON LOS HIJOS

Martes, 13 de Octubre, 2009, 6-9 pm

Este seminario, presentado en español, le ayudará a conocer los diferentes aspectos del proceso de separación y divorcio. Se discutirá cómo escoger un abogado, cómo conseguir separación de bienes y la forma de obtener una orden de protección en casos de violencia doméstica. También se discutirá cómo obtener la custodia de sus hijos y asistencia para su manutención. Al cierre de la sesión, habrá oportunidad para preguntas y respuestas.  Costo: $30

Nelson A. García, a family law attorney in the firm of Thyden Gross and Callahan, LLP has volunteered for several years at the Commission for Women as a presenter.  Mr. Garcia also volunteers in free legal clinics at a number of organizations including CASA de Maryland in domestic violence, child custody and divorce matters.  He received his J.D. from Boston College Law School and his B.A. in English and Business co-majors from Florida State University.  He is a member of the Maryland and District of Columbia Bar and is currently Secretary of the Maryland Hispanic Bar Association and a member of its Legislative Committee.

Section 9-106 of the Family Law Article of the Maryland Code provides that the Court may, in any custody or visitation proceeding, include a notice provision for intent to relocate in its order.  It is not automatic.  You have to ask for it.

The provision is so that the non-custodial parent has a chance to go to court and seek a change in custody or visitation.

The problem up to now has been that the notice period is 45 days and that has not been enough time to obtain a hearing date.  So the move usually has already happened by the time you get in front of a judge.  The home has been sold.  The kids have been enrolled in a new school.

So Section 9-106 has been revised, effective October 1 of this year, to provide for a 90 day notice period.  And if you file a petition within 20 days of receiving notice, the court will give you an expedited hearing.

Paul Simon, in his famous song, told us there must be fifty ways to leave your lover. I wonder if he counted the two new ways we saw on television this week:

1.  Use Your Reality TV Show.

Monday night, John and Kate Gosselin announced their separation and intention to divorce on cable tv.  This came amid months of tabloid speculation concerning extramarital affairs.  The show got its highest ratings ever.  The parties say they are going to split custody of their eight children equally.  The children will stay in the house and the parties will alternate living there in what is called a nesting arrangement.

2.  Call a Press Conference.

On Wednesday, Mark Sanford, 49, governor of South Carolina, held a news conference and announced that he had been unfaithful to his wife.  He had been missing for several days and told his staff that he was going hiking on the Appalachian Trail.  However, a newspaper report confronted him in Atlanta getting off a plan arriving from Buenos Aires, Argentina.  His public confession came just before the newspaper broke the story of his mistress in Argentina.

The prince ran off with his secretary.  The princess sued him for divorce based on adultery and desertion.   She got custody, child support, alimony, lawyer fees, the castle and half the kingdom.  And then they lived happily ever after.

A big mistake that a lot of people make in divorce is trying to keep the house according to an article by Lew Sichelman in the Chicago Tribune.  Indeed in Maryland the court can grant use and possession of the family residence for up to three years from the date of divorce to the parent who gets custody of the minor children.  In other words, keep the kids, keep the house.

But Kelly Lise Murray, lawyer and real estate agent in Nashville, says if you must keep the house, you should obtain an appraisal, a third-party inspection, a termite inspection, and a title search for hidden liens.  Murray also says you should consider the true cost of home ownership, which may include things like lawn care, homeowner’s association fees, replacement of appliances, maintenance and upkeep.

Murray says people tend to underestimate the “ghosts” that go along with keeping the house. The place is often so filled with memories, both good and bad, she says, that “it’s not the family home anymore. It’s a huge lodestone.  If you’re still linked through the house, then you’re not really divorced.”

Ever wonder why some people get over a divorce quickly and return to their previous level of function while others seem to crash and burn?

Mark Fine, a research professor at the University of Missouri, says it is because every divorce is different.  There is no such thing as a typical or average divorce.

Divorce can take many pathways and the outcome is influenced by a number of factors, such as race, gender, economic conditions, cultural values, legal context and sociohistorical context.

Fine has developed a model to demonstrate the variation and fluidity of the divorce process and he has written a book about it, “Beyond the Average Divorce”, which will be published next year.

One interesting finding is Fine’s notion that divorce also occurs in  relationships that may not be dissolved legally, but have actually dissolved in reality. Some married couples may stay together due to socioeconomic status or legal costs, but they are still going through the same things as a divorced couple, including trading custody of their children.

By Jill H. Breslau

Historically, in Maryland, there was a time when the father was the preferred custodian for the children, since he had the duty to provide for their protection, education, and maintenance.

Later, there was a maternal preference, especially in the case of young children, called the Tender Years Doctrine. Now, the law requires that neither parent be given preference solely because of his or her sex.

The standard for determining custody is the Best Interest Standard; that is, what arrangement for access to both parents will be in the best interest of the child. There are many criteria for Best Interest, but the court has broad discretion to make decisions. Factors considered in custody disputes include the fitness of the parents, their character and reputation, what the parents want and what agreements they may have reached, the preference of a child who is old enough to form “a rational judgment,” the age, health, and sex of the child, and such other factors as whether there has been abandonment, abuse, or adultery (if detrimental to the child).

What does that mean, in practice? Statistics reflect that in the vast majority of divorces, mothers get primary custody—whether by agreement or by court order. Why? Because the law looks backward to determine the future. Whatever circumstances have existed before carry the most weight in a court’s determination about what ought to happen in the future. So if a mother has been the person who has taken the children to the doctor, if she knows their teachers and their clothing sizes and who their friends are, if she has made the babysitter arrangements and play dates and handled most of the day-to-day decision-making and discipline of the children, she will have a good chance of obtaining custody.

The first step in a divorce proceeding is the preparation and filing of a Complaint. The legal document that starts the proceeding is entitled “Complaint for Divorce”. The Complaint states the grounds for divorce and the vital statistics of the parties and the marriage. You file the Complaint at the Clerk’s Office at the Courthouse.

The Complaint also covers certain technical matters and asks the court for anything you might want. If you and your spouse cannot agree on something (support, custody, visitation, property division, attorney’s fees, court costs) then you must ask the court for it in the petition or the court cannot give it to you. If the list seems long, or if it includes more than you want, think of it as a wish list.

If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. If your spouse has already filed, you can file a Countercomplaint for Divorce with your Answer.