Hi, my dear friends!
No matter what happens, we continue to work. Improving national legislation on the protection of animals is one of the most important tasks, since the attitude towards animals is one of the indicators of the civilized society.
We already have legislation to protect animals from cruelty, and it works. One way or another, the courts are beginning to change their position and bring the perpetrators of acts of cruelty to animals to justice. This is certainly a positive shift in the work of the judicial system, which is largely a reflection of the position of society as a whole.
My last article for Notary magazin was about animal custody. Today in Ukraine, animal custody is considered only in the context of volunteer activities, when it is established over animals that do not have owners. But there is also a family and legal aspect, when, during a divorce, the parties must determine the fate of the animal. And here we have a legal impasse, since the legislation considers animals only from the standpoint of property rights.
Since studying the experience of the leading countries of the world is a normal practice in improving national legislation, I turned to foreign experience. Today I want to share with you some interesting facts that I managed to find.
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.
These words begin Tabby T. McLain's article Detailed Discussion: Knick-Knack, Paddy-Whack, Give the Dog a Home?: Custody Determination of Companion Animals Upon Guardian Divorce
Indeed, this may seem strange to some, but there are a huge number of people in the world who consider their pets as family members, often in the status of their children. The emotional attachment can be extremely strong and losing a pet is like losing a loved one. I witnessed a man in our town die of a heart attack when his neighbors poisoned his dog. My friend suffered terribly when her ex-husband tried to take away her cat. In the same way, animals feel affection for a certain person and may suffer when separated.
At the same time, I see that it is not only a problem in my country when legislation considers animals solely from the point of view of property rights. Although sometimes certain remarks are included in the law. For example, Art. 651 of the Swiss Civil Code establishes that when it comes to animals that live in a domestic environment and are not kept for profit, the judge, in the event of a dispute, grants the exclusive right of ownership to the party who, by virtue of the criteria applied in the protection of animals, is the best solution for the animal. As for the other party, it will be entitled to compensation. But this is more the exception than the rule. Therefore, Emily Franklin writes in her article How to Give the Dog a Home: Using Mediation to Solve Companion Animal Custody Disputes
The notion of treating animals as no more than chattels seems at odds with the overwhelming number of Americans who value and cherish their companion animals as members of their families. Furthermore, the mere idea that a companion animal should be treated the same as a car or couch is absurd; companion animals are undeniably sentient beings who should be treated with respect. Guardians note that their companion animals display a “wide variety of human traits and emotions such as loyalty, trustworthiness, happiness, fear or jealousy” and are capable of reciprocating the love and attention generated by their guardians.
At the same time, despite the norms of the law, courts choose different approaches to determining the fate of an animal in divorce cases.
The first approach is that the court decides the case based purely on the norms regarding property rights. In this case, the animal will be transferred to the person who has proved his right of ownership. The court takes into account, in particular, such documents as the invoice from the pet store for the purchase of the animal, or the adoption document of the shelter, and in the absence thereof - evidence of who had the main expenses for keeping the animal (payment of feed, veterinary services, animal insurance, etc.) ). This approach is criticized because it does not reflect the attitude towards animals in modern society.
If the companion animal is regarded as mere marital property, then the court could order that the companion animal “become the sole property of one of the parties, with compensation to the other party for an equitable portion of [the companion animal’s] value.” In spite of how inherently unfair it would be for one party to receive sole custody of the companion animal, the issue of determining the companion animal’s worth is also fraught with problems. How can you calculate the value of a beloved companion animal? It seems nearly impossible to measure.
Emily Franklin How to Give the Dog a Home:
Using Mediation to Solve
Companion Animal Custody Disputes
The second approach is to resolve the dispute based on the "best interests of the animal".
The legal doctrine understands animal welfare as the satisfaction of physiological needs (daily care, veterinary care), but also psychological comfort.
This approach is often used in Israel courts. As an example, is the case of Ploni vs Plonit.
The 2004 Israeli case of Ploni v Plonit concerned an unmarried couple who, during their relationship, rescued a street cat and an ailing dog. When they split up the woman left the couple’s home taking the cat and dog with her. Subsequently, the man petitioned the court for joint custody of the pets or for the two animals to be separated and each person to get one of the animals. The court adopted a ‘good of the animal’ test and heard evidence from an expert on animal behaviour to reach its conclusion that both of the animals remain with the woman. At a practical level, the use of expert evidence on animal psychology/behaviour and the consequent increased time and resources this entails is likely to weigh against the use of such a test. Judge Shochet openly acknowledged the inadequacy of the law to resolve pet custody disputes, observing that ‘The concept of companion animals as property does not provide the legal system with tools to adjudicate and resolve the petitions and bring them to a suitable solution’.
Who Gets Charlie? The Emergence
of Pet Custody Disputes in Family Law:
Adapting Theoretical Tools from
Child Law
In summary, we can say that the outcome of the court proceedings will often be unpredictable (except in cases where the legislation directly indicates the duty of the court to consider the interests of the animal). As for the legislation of Ukraine, today the law directly establishes the legal regime of the thing in relation to animals, which actually frees the court from the obligation to find a solution that will correspond to its best interests.
However, our work continues. We have already made significant progress in improving our legislation regarding the protection of animals from cruelty. Changing the approach to deciding the fate of an animal in civil or family litigation should be the next step.