Kansas Appellate Court

Doggone Divorce Court
By Brenda Warneka

Dog lovers will not be surprised to learn that custody of the family dog is frequently a bone of contention in separation or divorce. However, they may be surprised to learn that Fido is considered personal property under state law, the same as a piano or a favorite piece of jewelry. Many divorcing dog owners disagree with this law and want their dog treated like a child. Courts determine a child’s custody based on what is in the "best interests" of the child. Judges (who may be dog lovers themselves) are often torn between following the law, which treats the animal as an inanimate object, or giving in to the wishes of the parties.

Akers v. Sellers, a 1944 Indiana court case, appears to be the first reported case involving a dispute over a dog in a divorce. John Akers filed a court proceeding to get his Boston bull terrier back from his ex-wife, Stella Sellers. The dog was not mentioned in the divorce decree, and Stella, who kept the family home, ended up with the pet because it lived there. The court said the dog belonged to Stella because it was given to her by John during the marriage. This decision treated the dog like any other gift of personal property.

Sixteen years later, in 1960, in Ballas v. Ballas, a California appellate court refused to consider whether the family Pekingese was community property or separate property, a relevant issue if the dog were being treated as personal property. It agreed with the trial court that Shirley Ballas should have the animal because she was the one who took care of it. This is thought to be the first reported court decision where a court looked to the "best interests" of a pet in deciding who would get custody.

In Arrington v. Arrington, a 1981 Texas case, perhaps in response to Ballas, insisted that dogs are personal property (saying they are not to be confused with humans), but opined that although A. C. Arrington had agreed that his former wife should have custody of the dog, Bonnie Lou, there should be enough love in Bonnie Lou’s heart to allow for visitation with A. C. What dog lover would disagree?

Not long after that, an Iowa appellate court in In re Marriage of Stewart, while agreeing that a dog is personal property, affirmed the trial court award of Georgetta, the family dog, to Jay Stewart. Regardless of the fact that Jay had originally given the animal to his wife, Joan, as a Christmas gift, the court pointed out that Georgetta accompanied Jay to his office and spent a substantial part of the day with him.