Caught in the Custody Crossfire

Should family pets be treated as property or as family?

By Janet Somers

Last year, Jean and Dean Stitzel of Oroville, CA, went on vacation leaving Norton, their African Grey parrot, with a neighbor. When they got home, the neighbor insisted Norton was hers and refused to give him back.

Animals are considered personal property under the law. So since Norton’s “fair market value” was below the $7,500 small claims limit in California, the couple sued in small claims court for his return. They testified that the neighbor gave Norton to them nine years ago. But the neighbor argued that she had always expected to get him back, that the Stitzels smoked, and that smoke was bad for the bird.

Judge William Apger ordered temporary shared custody of Norton as he deliberated – making Norton possibly the first bird in history to be shuttled back and forth between two homes by court order, like a child in a divorce proceeding.

“It really was a dreadful few months,” Jean Stitzel recalled. The Stitzels would talk to Norton from their backyard, without being able to see him, and the parrot would answer back. The neighbor had also clipped Norton’s flight feathers and he couldn’t fly during his custodial visits. “He would try, and he would flop,” Jean said. “You could see the befuddled look on his face. We were all in tears.”

The judge finally ruled for the Stitzels. He wrote that the case was not about “possession of a widget,” and, quoting another case, noted that “pets are often as deeply revered as members of the family.”

“It is further ordered,” he added, “that Plaintiffs shall not smoke in any room occupied by Norton, as this would expose the bird to conditions that would threaten its health to a level that could, upon proper proof, constitute animal cruelty. Finally, the court suggests, but cannot order, that the parties cooperate with one another and allow Defendant to visit with Norton from time to time.”

How animal custody cases are becoming more common

I asked Bruce Wagman, nationally recognized expert in animal law and co-author of a casebook on the subject, for perspective on this seemingly unusual case.

He confirmed that the ruling was extraordinary. “Small claims is just a strange place for judges to be making somewhat advanced rulings on issues of animal law,” he said.

But he added that companion-animal custody cases are becoming more common. “More and more, people are willing to fight for their right to take care of their nonhuman companions. I think it’s a combination of the appreciation of the human-animal bond and the growth of animal law as a serious discipline.”

With Wagman’s guidance, I read other cases, many available on the Michigan State University Law School’s Animal Legal and Historical Center website.

Some judges had considered animals strictly as property:

“In seeking ‘shared custody’ and a ‘visitation arrangement,’ Appellant appears to treat Barney, a dog, as a child,” one judge wrote in 2002. “Pennsylvania law considers dogs to be personal property.”

Another, in 1995, ruled: “There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property.” In other words, you can’t grant visitation rights for a living animal any more than you can for a refrigerator.

Pronouncements like this one, from a 1984 case, were also common: “We do not have to consider the best interests of a pet.”

Other judges, however, had granted shared custody of dogs in divorce cases, and several had found ways to value an animal’s best interests above property law in awarding custody.

“We think it best for all concerned that…Lovey…remain where he has lived, prospered, loved and been loved…,” a New York appellate judge wrote in 1999 about an elderly cat, in awarding him to the roommate who did not own the feline according to property law, but who was not moving out.

“Because I love the little guy.”

Another cat, Grady, in 1997 was awarded by a Virginia judge to the roommate who stated, when asked why he deserved custody, “Because I love the little guy,” and teared up. The other roommate argued only that he deserved Grady because someone had given him the cat, affording him legal ownership. When that roommate tried to bring new evidence of ownership (the judge had ruled the claim inconclusive), the judge, who held Grady and fed him treats in the courtroom, ruled that the custody award was based on “neglect that amounts to abandonment.”

“It’s the most important thing that’s ever happened in my life,” plaintiff Andy Zovko told me the other day, 13 years later, as Grady plopped into his lap.

According to the Michigan site, judges increasingly “have begun to reject the strict property analysis that applies to dogs and sofas alike, although there is no direct basis in the law for their departure.”

Norton, Lovey and Grady lucked out; they got judges like that.

I asked William Apger, who had ruled in Norton the parrot’s case, about his thinking.

“Because these people felt absolutely towards [Norton] like a parent towards a child, I treated it as a child custody matter,” he said. “But you also have to apply personal property law. I thought of it as a combination.”

What about the smoking?

“I thought of the canary in the coal mine, sensitive to carbon monoxide,” he said. “I thought Norton probably wouldn’t care to be in a smoke-filled room; it would probably be dangerous to his health.

“Some biologists would say that I’m being anthropomorphic to say that a bird has feelings. But I don’t believe that. Every living thing has feelings. You can see it in a hawk when it’s soaring…this bird was gonna know who he’d be happier with.”

By the Stitzels’ account, Norton was, indeed, happy to get home.

“I’ll never forget those first few days,” Jean Stitzel said. “He was so excited, he never stopped singing. He was just chattering non-stop.”

It took about six months for Norton’s flight feathers to grow back, and although still a tad skittish, he’s now airborne again.

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Janet Somers is a freelance writer with a special interest in animal protection issues. She lives with five cats.
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For more information:
If you’re involved in a custody case, the Animal Legal Defense Fund has a page entitled “What to do if you are involved in a custody battle over your companion animal.”

For a legal primer on pet custody arising from divorce, Michigan State University Law School’s Animal Legal and Historical Center has detailed information here.

If you’re a lawyer or judge, Lawyers and judges the Animal Legal Defense Fund says you can expect a growing number of animal custody cases. They have advice on how to plan for this, including the following suggested guidelines for judges in determining custody based on an animal’s best interests:

For a casebook on animal law, check out Animal Law: Cases and Materials, by Wagman, Waisman, and Frasch – now in its fourth edition.