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Jardine, Adam; Bromberg, Marilyn; Cardaci, Nicholas --- "No More Fighting Like Cats And Dogs: It's Time For A New Pet Custody Model In Australia" [2022] CanLawRw 6; (2022) 19(1) Canberra Law Review 86

No More Fighting Like Cats And Dogs:

It’s Time For A New Pet Custody Model In Australia

Adam Jardine*, Marilyn Bromberg** and Nicholas Cardaci***

Currently, when a couple separates in Australia, the Federal Circuit and Family Court of Australia (‘FCFCA’) treats their pets as chattels. For many Australian families, pets are not chattels. Australians love their pets and many treat them as a bona fide family member. This article argues that it is worth considering modifying Australian law to reflect our social understanding of companion animals. It further argues that Australian law should be modified to adopt an alternative model of pet custody that does not rely on the premise that pets are property. To this end, the article discusses three alternative models of pet custody and the premises upon which they are based. These models are the Pets as Persons Model, Sentimentality Model, and the Liminal Model. The article concludes that any of these three models would be superior to the extant pet custody model in Australia, and would better reflect Australian attitudes and values.


Beulah, Minnie and Karen are performers, though not by choice. Brought to the US decades ago, they have, collectively, an impressive résumé: spanning commercials, theatre, film, modelling, circuses, fairs, parties, sales promotions, weddings, and Republican political gatherings. It is not they who enjoy the fruits of a successful career, though, but the masters who keep them. They live, by some accounts, in squalid conditions: sad, sedated, and mired in their own faeces. They are denied adequate medical care to see to their skin conditions, and pulled about by bullhooks to control their movements. Then, of course, there are the indignities of ‘kiddie rides’, power-washing and the petting zoo.[1]

No doubt the reader was well ahead of the preceding sentence in determining that the trio are elephants (or were; Beulah and Karen passed away in 2019.)[2] But they were also plaintiffs at the centre of a unconventional suit.[3] It was brought on their behalf by the Nonhuman Rights Project (‘NRP’), a civil rights group working towards personhood for nonhuman animals and certain rights it entails (like freedom from arbitrary detention). It is one of a series bound by a bold goal: freeing (some) nonhuman animals from captivity via the writ of habeas corpus. Other clients have included Hercules, Leo, Tommy and Kiko – all chimpanzees confined by humans for human ends.[4]

These suits fought against an ingrained assumption of law: that non-human animals are not people. Philosophically, PETA’s position is similar yet more expansive than Steven Wise’s position that chimpanzees and bonobos should be afforded legal personhood.[5]

Thus far, the suits have been unsuccessful. So, too, were People for the Ethical Treatment of Animals’ (‘PETA’) attempts to have the orcas named Tilikum, Katina, Corky, Kasatka and Ulises freed from SeaWorld under the Thirteenth Amendment to the US Constitution (prohibiting slavery),[6] and to have Naruto, a crested macaque, enforce his copyright in his ‘selfies.’[7]

Alaska, too, has been experimenting, with what we might loosely call ‘pet custody’. In 2017, its legislature amended Alaska Stat §§ 25.24.010–25.24.990 (2017) (on ‘Divorce and Dissolution of Marriage’) to make the wellbeing of animals an explicit consideration in divorce proceedings.[8] Illinois and California have similar laws.[9] This legislation is relevant because it provides a very different view from how Australian family law regards pets: as chattels. The obligation in the American laws mentioned is to consider the animal’s wellbeing, which does not sound like a very onerous standard. One can consider the wellbeing of an animal and decide that its welfare is of little weight relative to some other concern. Nonetheless, the change is significant. Ordinarily, separation proceedings focus on the wellbeing of children, if there are any, and the spouses or partners, not pets. As David Favre stated: ‘For the first time, a state has specifically said that a companion animal has visibility in a divorce proceeding beyond that of property — that the court may award custody on the basis of what is best for the dog, not the human owners.’[10] The statute is phrased in terms of ownership and joint ownership,[11] and the best interests of the pet need not be secured in every decision, but it does put pets on a very different footing than, say, the fine china. Moreover, if we can speak of ‘pet custody’, what of other aspects of parenting law, like visitation or even maintenance?

This article argues that a pet custody regime may better reflect the unique place that companion animals occupy in Australian society. This is contrary to the current approach of Australian law where pets are regarded as chattels. This article suggests that a midpoint approach reflecting our social understanding of pets as part of the family should be adopted. It is however recognised that while pets should not be treated as property/chattels, they should also not be treated as having the same rights as humans: a nuanced approach is required. Since Australia has one of the highest rates of pet ownership internationally,[12] it is particularly important to consider this issue.

This article adds to the debate. This article makes the novel argument that Australia should adopt an alternative pet custody model that does not treat pets as property. The article now proceeds as follows:

a) Part I of this article outlines the basics of ‘custody' law concerning children in Australia: in particular, its objectives and the assumptions embedded within it.

b) Part II briefly outlines the law of child custody in Australia.

c) Part III explores the prevailing doublethink (i.e., cognitive dissonance) [13] underpinning animals legal position in Australian law; being simultaneously things and not-things.

d) Part IV discusses three alternative pet custody models — the personhood, sentimentality and ‘liminal’ models.

Ultimately, the article concludes that legal ‘thinghood’ is not quite right for pets. Given this, adopting an alternative model of pet custody would allow the law to better reflect how humans approach their companion animals. In turn, the law would be a better expression of Australian attitudes and values.

II ‘Custody’ of Children in Australia

In the context of child-rearing, ‘custody’ at common law is ‘a term encompassing most of the rights and duties concerned with the upbringing of children’, including ‘the power to control a child’s education, religion and property as well as a personal power of physical control’ and the duty ‘to provide the child with food, clothing, shelter, education and other necessities of life’.[14] In its current form, the Family Law Act 1975 (Cth) (‘FLA’) eschews the term ‘custody’. [15] Indeed, ‘residence’ and ‘contact’ are apparently considered too ‘cold’, having been replaced with the ‘more family focused’ term ‘parenting orders’.[16] What is meant by parenting orders and what parenting orders may deal with is explained in s 64B of the FLA including: the allocation of parental responsibility for children and with whom a child should live or spend time with. . A parenting order thus carves out certain aspects of what parenting usually entails (where the child lives and with whom the child spends time, decisions over education or religious upbringing and so forth) for one parent or the other. [17]

The best interests of the child being the paramount interest is the criteria for such decision making (ss 60CA, 65AA FLA). Section 60CC of the FLA which contains primary and additional considerations guides the process for determining the best interests of children. The legislation thus embodies certain ideas about what is generally good for children, and seeks to guide the process accordingly.

Parental responsibility concerns decision making authority and responsibility. This is separate from with whom a child lives and spends time. Where equal shared parental responsibility applies, parents must make long term decisions about the child jointly.[18] The presumption regarding shared parental responsibility is rebuttable and only applies to parents although people other than parents may be allocated parental responsibility.[19] It is not a presumption that equal time must be spent with each parent,[20] though the legislation is strongly geared towards that result,[21] or if applicable, a parent spending ‘substantial and significant time’ with their child.[22]

What is clear, from this brief summary, is that where a parenting dispute arises regarding where a child lives and/or with whom a child should spend time, the child is not considered a ‘chattel’, ‘property’ or ‘thing’. The Objects and Principles (s 60B) of Part VII of the FLA (which deals with children) states that children have ‘rights’ and parents have ‘duties and responsibilities’, with the best interests’ of the child the guiding principal in the decision making process.

III Australia’s Prevailing Doublethink[ing] View of Animals

as Chattels or Things

As indicated in the article’s introduction, in separation proceedings, contrary to the manner in which the law approaches children, the law treats companion animals as property which available for distribution. In Australia’s State courts there have been clear statements of principles that pets are property, and in federal family law cases thisprinciple has been applied to distribute pets to one party or another. Some of the relevant cases from both State and federal jurisdictions are now discussed.

A State Cases Concerning Pets’ Status as Property

First, the nature of pets as property under was illuminated in the recent appeal case of Britt v Parcell.[23] The appeal concerned an earlier order from the Local Court. The order was that one party (the applicant) to a de facto relationship must return the dog ‘Harold’ to the other party (the respondent.)[24] On appeal, Nelson DCJ considered the question of whether Harold constituted ‘goods’, because if Harold was ‘goods’ then the NSW Local Court was within its power to order Harold’s return.[25] Nelson DCJ felt it appropriate to survey inter alia the traditional meaning of ‘personal property’ and ‘goods’ in property law and sale of goods legislation respectively.[26] From this survey, and after noting that ‘goods’ encompasses personal chattels (i.e. personal property),[27] Nelson DCJ held that:

There can be no doubt that an animal is a chattel. As what I have quoted from Megarry and Wade makes clear, the word chattel is derived from the same etymon as the word cattle. A cow or an ox is a chattel. Any animal is a chattel.[28]


The dog belonged to the respondent. He paid for it. It was his property just as much as if he went out and bought a cup of coffee or a book.[29]

As such, Nelson DCJ held that Harold constituted goods and personal property that could be returned under the NSW Local Court’s powers:[30]

The dog was a chattel. The dog could be described as "goods". There is no doubt that the Local Court in its Small Claims Division had power to order the delivery of the dog by the applicant to the respondent.[31]

Another case in the State courts which illustrates the status of pets as chattel is Chow v Chang (‘Chow’.)[32] This case concerned a white male Pomeranian dog named Kobe in the context of a previous intimate relationship between the plaintiff and respondent.[33] Kobe was in the possession of the respondent.[34] The plaintiff applied to the Court for ‘an order that the Dog be returned to his possession as the rightful owner’[35] and pleaded that the respondent’s possession constituted an act of conversion.[36] In response, the respondent contended that Kobe was rightfully hers, as Kobe had been gifted from the plaintiff to the respondent.[37]

Magistrate Hoare dealt with the case on these pleadings. The authors note that the Court, by dealing with the case on these pleading, accepted the pleadings’ underlying premise that Kobe was property. The plaintiff’s cause of action (of conversion), and the respondent’s claim that Kobe was a gift, both rest of the unstated premise that Kobe is property.

The evidence bore out that during the relationship, after receiving many requests from the respondent, the plaintiff bought Kobe for $4,300 from a breeder.[38] In addition, Kobe’s microchip registration and the purchase receipt listed the plaintiff’s name.[39] Ultimately, Magistrate Hoare preferred the respondent’s evidence and ruled that Kobe had been a gift to the respondent, and dismissed the plaintiff’s application for Kobe’s return.[40]

B Federal Cases Illustrating Extant Pet Custody Model and the Distribution of Pets to Family Law Litigants

Moving onto federal family law cases, a key case demonstrating Australia’s extant pet custody model, in which pets are allocated to parties as chattels (despite how hard as distribution rules may be to apply to a beloved pet)[41] is Gaynor v Tseh.[42]

Gaynor was decided in the former Family Court of Australia. The case concerned an interlocutory application.[43] The applicant was ‘urgently’ seeking, inter alia, the return of a dog from the respondent.[44] In dispensing the application,

Cronin J began by acknowledging that the FLA ‘makes no reference to pets’ and applicant’s concession that ‘a dog does not fit within any other category of property than a chattel.’[45] Further, the respondent was in agreement with the court and respondent on the dog’s status of property [46] Further, Cronin J held that the relevant provisions of the FLA included the provisions concerning alteration of property interests between the parties.[47]

Ultimately, Cronin J held that the Court could exercise its aforementioned powers to alter property interests between the parties to order the dog’s return to the applicant.[48] Nonetheless, Cronin J refused the application on the grounds that it was not appropriate in the circumstances particular to this case.[49]

Gaynor was applied in the subsequent case of Davenport v Davenport (No 2),[50] which applied where during property proceedings, the husband sought interim orders for ‘shared custody’ of the dog that belonged to the parties.[51] Judge Tonkin refused the application stating: that a dog is a chattel or an item of personal property.[52] On this basis Her Honour found that it was inappropriate to make orders for ‘shared custody’.[53]

1 Similar Treatment of Animals in Canadian Family Law Cases

Gaynor is not unique in how it treated animals in family law proceedings. In Canada, the law considers pets to be ‘personal property much like other chattels’,[54] as shown by the similar approach used overseas in the Canadian case of Baker v Harmina,[55] where White JA explained bluntly:

[...] [W]hen two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it.[56]

The traditional Canadian approach has also been succinctly and described by Jessica Fox as follows: ‘Courts do not allow a party to have joint custody of the flat screen television, and as pets are personal property, they will not allow joint custody of the dog.’[57] Joint ownership is disfavoured, for the same reason pet custody is: courts do not want to continually play referee.[58] Further, custody ‘was created for the benefit of human children, not canine’.[59] Consequently, since pets can be the subject of property distribution, but not a custody hearing.[60]

To determine ownership of a pet, Papageorgiou J in Duboff v Simpson held that ‘[t]he traditional approach to determining who owns [a pet] focuses primarily on who purchased and paid for the [pet] and whether there are any discrete transactions where ownership changed.’[61]

Traditionally, once the property rights are determined, the issue is settled. The situation does not change with different circumstances, as custody might.[62] However, more recently this traditional approach has been put aside in favour of ‘a broader approach to ownership than who purchased the [pet]’[63] in other Canadian decisions.[64]

The broader approach rests on the premise that the question ownership of pets, while remaining property,[65] is more complex than ownership of a bicycle.[66] As such, the broader approach instructs Canadian courts to consider the following non-exhaustive list of factors in determining who should receive a pet in separation proceedings:

i. Whether the animal was owned or possessed by one of the people before their relationship began;

ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv. Who purchased and/or raised the animal;

v. Who exercised care and control of the animal;

vi. Who bore the burden of the care and comfort of the animal;

vii. Who paid for the expenses related to the animal’s upkeep;

viii. Whether at any point the animal was gifted by the original owner to the other person;

ix. What happened to the animal after the relationship between the litigants changed; and

x. Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.[67]

In sum, while Australia’s pet custody model is congruent with the traditional Canadian approach, Australia’s model is more recent Canadian case law.

C Australia’s Incongruent Legislative Limits to the Thinghood of Animals

Returning to Australia in detail; while Australia’s federal and State case law treats animals as chattel (i.e. things) in the realm of family law, animals are treated as being more than mere things in other Australian legislation. Indeed, animals have their welfare protected to some degree under Australian legislation. This incongruence is obvious and the authors suggest this reflects the aspect of aforementioned prevailing doublethink which considers animals as more than things. On the social unacceptability of cruelty to animals (despite being mere chattel in family law), Epstein claims:

[I]t would be simply insane to insist that animals should be treated like inanimate objects [legally]. The level of human concern for animals, in the abstract, makes this position morally abhorrent to most people, even those who have no truck whatsoever with the animal rights movement.[68]

Animal welfare legislation, and parts of the criminal law, provide some of the restrictions on harming animals.[69] We cannot, for example, be arbitrarily cruel to animals[70] (under what is obviously an attenuated definition of cruelty, given what we can do). Taking responsibility for an animal can also carry a minimal duty to maintain it.[71]

The virtue of anti-cruelty initiatives has historically been seen to lie not in recognition of an animal’s interests, but in the cultivation of moral excellence (or at least, reduced cruelty) in humans,[72] or in respect for the owner’s property rights (meaning only non-owners were targeted).[73] Today, the concern may have more to do with the animals themselves. That is, they are thought to have intrinsic worth divorced from their instrumental value (to humans).[74] This intrinsic worth supports the idea that the law should treat animals as something more than chattels. Insofar as the point of animal welfare legislation is to ensure the welfare of animals, it may be suggested that their special moral status is recognised.[75] In a loose sense, they might even be said to have rights.[76]

While these restrictions are welcome, the legal limits on animal cruelty are themselves limited, which renders suspect the claim that animals currently have rights. As ‘[w]hen an interest is protected by a right, the interest may not be ignored or violated simply because it will benefit others’[77] but alleged animal ‘rights’ often can be violated or ignored under legislation permitting ‘reasonable’ or ‘necessary’ cruelty.[78] Such legal cruelty, if permitted on humans, would be far less tolerated if at all.[79] An owner cannot do whatever they like to animal property, but ‘protection remains a qualification of the otherwise absolute property interest that an owner of [an] animal enjoys in the animal.’[80] In essence, ‘[w]e protect animals only if and insofar as this protection is consistent with our use of them’,[81] ‘sacrificing even the most basic interests of animals to the most trivial interests of humans’.[82]

The caveat here is important. The community does not tolerate ‘pointless’ cruelty. But the bar for pointlessness is set very high. Youths playing ‘quokka soccer’ (kicking a species of marsupial abundant on Rottnest Island, in the authors’ home state of Western Australia) will be judged harshly. Whatever enjoyment they get from the act is not a good enough ‘point’.

The law protects the interests of animals to the extent it is consistent with their exploitation.[83] When human and nonhuman animal interests collide, the human always wins.[84]

This is the ethic of ‘humaneness’: the ‘key governing norm underpinning companion animal protection’. ‘This ethic allows that animals have intrinsic worth, and should be protected against harm, at least to the extent that this does not interfere with conflicting human interests, such as buying and selling animals for profit, imposing harmful breeding standards or freely relinquishing animals when no longer wanted.’[85] Francione states that ‘[w]hen it comes to other animals, we humans exhibit what can best be described as moral’ schizophrenia .[86] ‘Although we claim to take animals seriously and to regard them as having morally significant interests, we routinely ignore those interests for trivial reasons’: and the law permits us to do just that.[87] The law treats them as property, so we can treat them as property: the source of a profound and persistent hypocrisy.[88]

Humanity’s treatment of non-human animals betrays Orwellian double-think — believing two contradictory things simultaneously[89] — as exemplified by article 898.1 of the Civil Code of Quebec:

Animals are not things. They are sentient beings and have biological needs.

In addition to the provisions of special Acts which protect animals, the provisions of this Code and of any other Act concerning property nonetheless apply to animals.[90]

The Australian Capital Territory has Australian first legislation that considers animals to be sentient beings. The objects of the ACT’s Animal Welfare Act provide that ‘animals are sentient beings that are able to subjectively feel and perceive the world around them’.[91] New Zealand has similar legislation recognising animals have needs[92] and the Victorian Government has proposed new animal welfare legislation,[93] which recognises that ‘[s]cience tells us that animals are sentient.[94]

In short, Australian laws protect animals from cruelty to a degree, but these protections are themselves limited.

1 The Special Treatment of Pets in Australian Law

As the authors have shown, Australians believe animals are things, and we believe they are not. We treat them like they are things, and we treat them like they are not. The best example of this double-thinking tendency comes from nonhumans we buy to be part of our families: animals we do not always relate to as animals.[95] We speak, of course, of pets.

Many Australians own a pet. In fact, there are more pets than there are Australians. In 2016, there were more than 24 million Australian pets and less than 24 million Australian humans.[96] Around 62% of Australian households included a pet (giving the nation one of the highest pet ownership rates in the world),[97] with dogs and cats being the most popular (found in 38% and 29% of households respectively).[98] The most commonly cited reason for getting a dog or a cat was companionship (66% and 65% respectively), but once acquired, 64% considered the dog a member of the family; 65% thought the same of their cat.[99]

Pet parents will ascribe to their fur babies characteristics they would see in their own children: wilfulness, playfulness, obstinacy, and above all, affection.[100] We give them human names.[101] We rely on them for emotional support.[102] We sacrifice for them — money, sleep, even our safety[103] — not just to keep them alive, but to give them the best possible life.[104] When they die, they are mourned.[105] A new one can be purchased, but a lost one is irreplaceable.[106] These creatures are not property. They are family.[107]

Pets further complicate the position of animals in Australian law, as pets are a special class of animal that enjoy greater legal protections than other animals. This situation means that Australia inadvertently manifests another Orwellian phrase: ‘all animals are equal but some animals are more equal than others.’[108] Legally, a pet’s position is not quite like that of other animals. Pets ‘enjoy the fullest regulatory protection of all animals’,[109] and courts, as we shall see, have sometimes treated them as more than mere property. The general Australian attitude towards dogs in particular were inadvertently well-articulated by the far-away Wisconsin Supreme Court in Rabideau v City of Racine: ‘[l]abeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with a dog.’[110]

Despite pet’s privileged position vis a vis other animals, the ‘pet personhood’ conceit does not translate into the jurisprudential or legal consequences of personhood, and the protections which do exist are lax. As Pendergrast notes, ‘people can leave a dog outside, never walk them, never interact with them or give them any interactions with people or other animals and that is still an acceptable use of the property, despite this having a very detrimental impact on the dog’s quality of life and mental health’.[111] Even the most basic responsibility one could have to a dependent animal — to keep it alive — has an ‘out’. ‘Animal welfare shelters in Australia take in enormous numbers of unwanted animals every year, including those surrendered or relinquished by their owners’, leading to ‘the unnecessary killing of a large number of otherwise healthy animals.’[112]

The rhetoric of pets being family members likewise makes little sense, in legal terms. Fur babies stand in a very different position than actual babies. ‘The excitement of acquiring a pet (especially for children) often fades quickly and this is where the animal’s future welfare hangs in the balance’.[113] As Pallotta puts it: ‘“Family member” is a conditional position that confers life or death on individual animals, and this status can be dissolved at any time based entirely on the discretion of the sole rights-holder in the relationship: the human owner.’[114]

Pethood, as an institution, involves dissonance. ‘[C]ompanion animals are regarded as both members of the family and as objects to be discarded without legal sanction when it suits.’[115] Legally, pets are property. Extra-legally, humans do not treat them that way: or rather, not always. They love and care for them as they love and care for something which can love them back. They do not act on them; they interact with them; as they are more than things.[116]

Pets are in a socially unconventional ‘liminal’ or ‘in-between’ space. They are, in Pallotta’s words, ‘elevated above both mere chattel and other animals who are not defined as companions, yet uniquely vulnerable due to both their legal classification as property and inconsistencies in the cultural narrative that defines them as family’.[117] Pallotta uses the phrase ‘rhetorical family members’,[118] but ‘rhetoric’ can suggest either artfulness or speciousness. Dafna Shir-Vertes has referred to them as ‘flexible persons’ or ‘emotional commodities’, ‘loved and incorporated into human lives’ but able ‘at any moment [to] be demoted and moved outside of the home and the family’.[119] The language of dissonance may be most apt: believing contradictory things simultaneously.[120] That seems like the right label for habits of thought under which companion animals are ‘bred, bought, sold, trained, caged and killed according to our will’ but ‘also share our homes and our lives, drawing upon our emotions and resources’.[121]

Now that the existing law has been explored, it is time for the article to present what could be.

IV Alternatives to Thinghood for Pets

There are alternative pet custody models to better reflect pets status as more than mere chattel that is already reflected in Australian attitudes and criminal/animal welfare legislation (despite the legislations’ limitations.) This article now explores these alternative models.

Human relationships break down. Difficult decisions have to be made regarding children: who they will live with, who they will have contact with, at what points they will have contact, and so forth. Courts are very familiar with those kinds of dispute. In Australia, as already mentioned earlier in the article,[122] the paramount consideration in determining what orders to make is the best interests of the child. But what happens to a fur baby when their human parents split up? Could they be subject to a similar system?

Some of the factors when the court considers when deciding the best interests of the child translate easily from human children to pets. For example, an important consideration in deciding with whom a child will spend time or where a child will live is ‘the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents’.[123] If one of the people seeking an order viewed pets as a full-time responsibility, and the other viewed them as an after-work distraction to be left alone in the house for 10 hours a day, the choice would be clear. If one of them had a record of violence against the animal, which is also a consideration involving the best interests of human children,[124] that would weigh heavily against an order in their favour and potentially ban them from owning pets in these circumstances.

Other custody considerations demand more thought before they travel. Could a pet’s relationship with children or other pets be taken into account? (The former Family Court did not, after all, try not to separate siblings.)[125] How relevant is maintaining the status quo to a pet custody order? Should the Court inquire into the capacity of each party to provide for the pet? What if one of the parties wants to move the pet to a location where it would not be feasible for the other to maintain contact? Should the Court take the influence of other people — say, a party’s new spouse — into account? (Would it be a ‘plus’ if they remarried a veterinarian, and a ‘minus’ if they married a convicted animal abuser?) Are there circumstances in which an ‘independent pet’s lawyer’ should be appointed to ‘form an independent view ... of what is in the best interests of the pet’?[126] Should ‘pet maintenance’ orders (or ‘petimony’) be available?[127] Those questions demonstrate that the model for pet custody and the model for child custody will differ to the degree children and pets do (in relevant ways).

The best interests of a human are not the best interests of a Chihuahua. ‘However similar to us as our pets are, they are not humans’: ‘their views of the world, needs and preferences are, in many ways, very different to ours.’[128] Discussing ‘next-friend’ standing for animals in the US, Judge Smith stated: ‘We have millennia of experience understanding the interests and desire[s] of humankind. This is not necessarily true for animals.’[129] In Nuzzaci v Nuzzaci, Crompton J worried about where ‘best interest’ thinking for pets might lead.

[W]ould it be abusive to forget to clean the fish bowl or have Tabitha declawed? If the door were opened on this type of litigation, the Court would next be forced to decide such issues as which dog training school, if any, is better for Zach’s personality type and whether he should be clipped during the summer solstice or allowed to romp ‘au naturel.’[130]

In Travis v Murray, the Court stated bluntly: ‘[T]here is no proven or practical means of gauging a dog’s happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag’ (or conducting a canine MRI).[131]

However, humans have millennia of experience living with and understanding companion animals, like dogs and cats. We cannot ‘get into the head’ of a nonhuman animal to determine with certainty which owner it favours,[132] but we can interpret obvious markers of comfort and distress, and make sensible judgements on which environments might be better for them. For example, an important factor in the New York decision of Ramseur v Askins was the dog’s obvious anxiety when being separated from the defendant’s family.[133] In the Vermont case of Hament v Baker, the trial court used the fact the dog was accustomed to a daily routine that involved going to the husband’s workplace (a veterinarian’s clinic) to judge that his welfare was best served by remaining with the husband.[134] A similar emphasis on the status quo appears in Mitchell v Snider, from New York,[135] and Placey v Placey, from Alabama.[136] In the latter, the Court judged that a place with a yard was better for a dog than the ‘cramped quarters of a hotel room’.[137] In some cases, dogs have been awarded to their primary caregiver, in much the same way a child might be: not as a reward to the caregiver for services rendered, but in recognition that their charge’s welfare is likely to be better secured that way.[138] In others, owners who have demonstrated insufficient investment in their animals (by, for example, handing them to others to care for and not showing much concern for their fate) have been denied them in disputes.[139]

The fundamental difference between a human baby and a fur baby is easily stated. The human is a person, and has rights. The non-human is not, and does not.[140] If you begin from the premise that non-human animals are property, you cannot treat them like children.[141] If the law moves away from this premise, new models of pet custody are possible. Indeed, alternative models are the Pets as Persons Model, Sentimentality Model, and Liminal Model.

Each of these alternative models consider animals as something other than pure property. Equally crucial is that these alternative premises resonate with aspects of contemporary attitudes towards companion animals. For this reason, each model has a solid claim to being more socially conventional than the existing pet custody model, which is incongruent with contemporary attitudes towards pets. The article now proceeds on to discuss, in detail, these three alternative models for pet custody.

A ‘Pets as Persons’ Model

There is an established body of philosophy and jurisprudence on animal personhood (for example, from Peter Singer and Gary Francione). There is even some (very limited) precedent for extending personhood to animals:[142] or more commonly, extending the law’s reach to animals in areas once reserved for people (such as trusts and protection orders in domestic disputes).[143] It is fair to say, though, that animal personhood remains a ‘fringe’ idea. We began the article with the Nonhuman Rights Project’s attempts to extend personhood to elephants and chimpanzees: but their optimism about the possibilities of American common law did not translate into legal success.

A wide variety of animals are kept as pets.[144] Finding a characteristic common to all that could be positioned as legally relevant in personhood debates would be difficult. It is, however, possible to have a system where only certain pets are subject to a ‘custody’ analysis, recognising their personhood, and others are subject to a ‘property’ analysis, in which they are things.[145]

If there was to be a recognition of animal personhood, it would make sense for it to start with the most human-like animals (as they are the most analogous with the only universally-acknowledged ‘natural’ person). The NRP’s cases, for example, have focused on a select group of animals that have certain ‘human’ characteristics, such as high intelligence, self-recognition, emotional complexity and a degree of autonomy[146] (as opposed to something very broad, like the capacity to suffer),[147] and which are not domesticated (thus, not ‘central to contemporary Western economies or ways of life’ — that is, they lack a ‘designated use’).[148] However, the species that function as fur babies are not the ones that are most human-like.[149] Some characteristics that make an animal suitable as a companion resonate with human capacities, such as an ability to respond to human body language and emotion.[150] Others would not be virtues in a contemporary free-spirited Australian: such as low or modest intelligence, pliability, and comfort with confinement. These are characteristics that let us feel it is ‘okay’ to keep them. The desire for autonomous action is the mark of a bad dog.[151] Where possible, pets are trained or conditioned — indeed, bred — for compliance.[152] Their will is subsumed to their master’s. If they run, they will be brought back. None of this is necessarily malicious: but if done to a human, it would constitute slavery.

Moreover, some animals that have the person-like qualities of a good companion are not generally recognised as such, perhaps for cultural reasons. Pigs have many of the dog’s virtues — intelligence, trainability, sociability, and positive responses to human companionship.[153] In Australia, they are not usually viewed as pets (and local government rules may make it difficult to keep them as such). It would be hypocritical to routinely use person-like characteristics to confer personhood sufficient for custody purposes on pets, and routinely ignore it in animals culturally positioned as food.[154]

Assuming the problem of definition can be addressed, there is then a question of scope. Personhood indicates a capacity to bear rights, but not necessarily all the rights a person could have. Children are definitely people.[155] However, they are subject to a form of stewardship and control (albeit one they will grow out of, in most cases). They do not have all the rights of a fully functional adult human (e.g. the right to vote). Pets could be governed by a similar model.[156] They would have the rights appropriate to them, and lack the ones that are not,[157] just as corporations cannot have a right to bodily integrity and men cannot have a right to abortion.[158] Species-specific rights for pets could include a right to have their interests accounted for in custody disputes.

Fundamentally, though, there is a large ‘disconnect’ between personhood and the pethood paradigm. We anthropomorphise pets, to an extent, so that we can see something in them that we want, like affection. Yet if they were human, we could not buy them and keep them, no matter the quality of the cage.[159] The nature of pethood is confinement and control, for the comfort of another: not choice, not self-direction, not parity. It relies on them being so much less than us that our controlling every aspect of their lives is doing them a favour. If pethood as an institution is to continue, the property status of pets cannot be swept away, any more than slavery makes sense if slaves are fully people.

In terms of making a big statement — encouraging a fundamental rethink of the way humans relate to nonhuman animals — making animals people, rather than property, will definitely deliver.

The NRP cases demonstrate, though, that it is hard to make headway with an animal personhood model.[160] It is too radical a rethink of the relationship between human and nonhuman to be accepted without a lot of groundwork going into the jurisprudence, and a lot of political activism shifting opinions[161] (along with a lot of thought as to the implications of such a profound shift throughout the law).[162] That is so even in the US, where animal jurisprudence is a more established field.

In Australia, where animal jurisprudence is less developed,[163] the chances of successfully implementing this model are currently minimal.[164] That does not mean it is not worth discussing. It would be wise, however, to manage one’s expectations first.

B Sentimentality Model

The ‘pets as people’ model looks to pets as creatures capable of having their own interests. The opposite end of the spectrum, unsurprisingly, is a far more anthropocentric model:[165] one in which pets are treated differently from other types of property to reflect the special position they have in human lives. This is a system that offers concessions to human sentimentality as it is premised on valuing such sentimentality.

On this model (henceforth the ‘Sentimentality Model’), we look less to reality than perception. Whether an animal actually has the capacities we ascribe to it is not the point. A dog’s friendship and enthusiasm might be pack instinct and anxiety when left alone. As long as the animal’s expressions trigger their owner’s friendship, enthusiasm, desire for play, and ultimately love, the owner will be invested in its welfare.[166]

The framework for the Sentimentality Model is relatively straightforward, and at least part of it synchronises with Australia’s extant pet custody model. A court, in a property dispute, needs to do justice between the parties. If the parties have no particular affective investment in an item, the most important thing is likely the overall value, and the portion of it that an individual receives. Selling the property and splitting the proceeds is a viable solution. If an individual does have a strong affective investment in a piece of property, the matter is more complex. That the particular item goes to X rather than Y, or to no one, is important.[167]

Pets attract substantial affective investment. Selling a dog and splitting the proceeds because the parties cannot agree on ownership will make only the most callous owners happy.[168] Most pets are not good investments, in dry financial terms. Like children, they cost money to maintain, and the rewards they give are not usually pecuniary.[169] A simple concession to human sentimentality would be to account for that in making distributions: to treat pets as something which cannot be subsumed into the general property solution. Like heirlooms or works of art, their sentimental value may mandate a special approach: a perspective adopted in New Jersey,[170] and perhaps possible to accommodate under existing distribution rules.[171] But the sentiment involved may be on another plane, as Friedman J explained in the case of Corso v Crawford Dog and Cat Hospital, Inc:[172]

An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. Losing the right to memoralize a pet rock, or a pet tree or losing a family picture album is not actionable. But a dog — that is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness.[173]

Indeed, given pets can sometimes take the place of children in a couple’s affections,[174] or be a huge part of a child’s world,[175] the investment could be intense.

The relevant orders may have to be more complex than a once-and-for-all disposition. If the parties both have substantial affective investment in a pet, justice and fairness may demand that both of them be given access. Thus, there could be something like the residence and contact orders family lawyers are familiar with: recognising, contrary to the pure property analysis, that setting a visitation schedule for a dog is not like setting one ‘for a table or a lamp’.[176] Alaska’s legislation was partly inspired by a court’s amenability to dog visitation,[177] and there are some precedents for pet custody and visitation arrangements[178] (in an overall context of strong opposition).[179]

A Sentimentality Model could be more equalising among the species than the personhood model. The focus is the feelings of the pet owner. An expressive and empathetic creature, like a dog, has an advantage over, say, aquatic life, because it is a lot easier to see a Labrador reciprocating affection than a neon tetra. If an individual subjectively feels a great attachment to their fish, though, no amount of philosophising will show their position to be weaker than the dog owner’s.

There is a chance that a Sentimentality Model will lead to better outcomes for companion animals. It may heighten the chance a pet will become the property of the owner who is most invested in it. Alternatively, the pet may have the benefit of being cared for by two owners invested in it if some sort of shared custody is facilitated. It would depend partly on how much influence the ‘attachment’ consideration had in practice.

However, the welfare of the pet is not the primary consideration here. It is a human-centred model, concerned with the happiness of pet owners. If the point of pet custody reform is to promote human happiness, that is well and good. For a strong advocate of animal rights or animal welfare, though, it is not a satisfying solution. The underlying premise is not what one would hope for, and the role the interests of the animal actually plays is limited. It is perhaps the easiest to accommodate in existing law because it does the least: which is very much a ‘good news, bad news’ situation.

C ‘Liminal’ Model

When humans are emotionally invested in their children, there is a ‘selfish’ (in a non-pejorative sense) component: they want their children with them. There is another layer to their investment, though. They want their children to prosper and be happy, even when they are parted from them. They recognise that children are valuable in themselves, and have their own interests as distinct beings which will not always coincide with what would be most gratifying for their parents in the short term. That ‘nobler’ type of affect manifests imperfectly in the real world. It is easy to agree that the best interests of the child should be the paramount consideration in residence determinations — until a judge decides that the best interests of your children are not secured by them living with you. Abstracting out from the individual to society, though, confidence in the system increases if it is known that the interests of children — a cherished, yet vulnerable, group — are safeguarded.

As pets still fit, legally and to a large extent culturally, within the property model, one cannot assume the same degree of deference will be given to their welfare over the autonomy of their owners. There is generally little pressure for owners to think that what is best for their animals may be different from what they (the owners) desire. Nonetheless, so far as companion animals are recognised as having their own interests — if only because they have their own welfare — a society might make a more pet-friendly determination.

To adopt such a reform, the law cannot treat animals as pure property: but it does not have to recognise them as people, either. It could start from a premise that the Australian community already adopts, albeit without much reflection: non-human animals are ‘kind of, but not really’ property. They can be sensibly analysed as a category of property: they are the subject of a ‘bundle of rights’, including the right of alienation. But it is an uneasy classification. They are in a category unlike the others.[180] Pets are in a ‘liminal’ space: not quite one thing, not quite the other. They are semi-people or semi-property, or ‘property plus’.[181] They would not need all the rights a human person has for pet custody to work, but they would need this one: the right to have their interests taken into account when property distributions are made in separation proceedings.

The strongest model would be the closest analogue to child custody, where the best interests of the child are paramount: a ‘best interests of the pet’ model. There is some case law from the US in which courts have borrowed elements from child custody cases in making pet-focused decisions,[182] but with few exceptions ‘even the decisions employing custody or custody-like considerations to dog disputes have uniformly rejected the application of a “best interests” standard’.[183] The assumption tends to be that ‘[h]owever strong the emotional attachments between pets and humans, courts simply cannot evaluate the 'best interests” of an animal’,[184] and that companion animals are not worth the extraordinary consumption of time and resources that goes into an assessment of a child’s best interests.[185]

Another option is to adopt a ‘best interests of all concerned’ or ‘best interests of the family’ model. Under this approach, one ‘person’s’ interests are not the overriding consideration — certainly not their property interests — and the concept of ‘interest’ in play is broad. It is quite possible that ‘intangible, highly subjective factors’ will win out over ‘the ordinary indicia of actual ownership or right to possession such as title, purchase, gift, and the like’.[186] For example, the special place pets have in the lives of children (as friends, as substitute siblings, as teachers of empathy) may be a factor encouraging the court to keep pets and children together. Their role as companion, alleviating loneliness, may be more significant to one spouse than another, and that might be decisive in the right case.[187]

More importantly, for present purposes, the animal is recognised as having its own interests worthy of consideration. That a dog has a role in decreasing its owner’s anxiety would not necessarily be more significant than the fact the owner has a role in increasing the dog’s anxiety. [188]

Such an approach has surfaced in New York, in cases such as Raymond v Lachmann[189] and Travis v Murray.[190] Courts have been prepared to depart from the traditional property analysis and ‘recognize that animals are undoubtedly more significant than a chair, table or other piece of property’.[191] There is also some scholarly support for it.[192]

On a ‘liminal’ model, it is not necessary to treat every type of pet the same. How we approach the species depends on the extent to which they exhibit whatever characteristic we take as important to the creature’s moral worth. The characteristics may simply be the ones which determine how amenable the species is to the type of ‘best interests’ analysis custody disputes involve.

‘In-between’ models such as the liminal model are not unknown in jurisprudence. Favre, for example, has a model of equitable self-ownership for animals which could be viewed as ‘kind of, not really’ ownership. It is similar to a trust in the following respect. A trustee is in some respects the owner of property, though not in others. To explain, a trustee holds the legal title to property, on trust, for the benefit of another who is also in some respects the owner, that is, the beneficiary (holding the beneficial title). As described in the paragraph below, in Favre’s model, ownership of an animal is also divided into the legal and the equitable. He favours the term ‘guardian’ for animals, as opposed to ‘trustee’,[193]

Under Favre’s model, the ‘self-owned’ animal is the beneficiary of duties derived from two main sources: ‘anticruelty laws and the concepts developed for defining the parent-child relationship’.[194] As with the parents of a child, the guardians of a pet would have a broad (though not unlimited) discretion to determine what is in the pet’s best interests: but on a relationship breakdown, the parties may have very different ideas. If they cannot agree, then the court must step in: and ‘[t]he issue will not be resolved by reference to who wrote the check for [the pet] or which human wants [the pet] the most, but rather what is in the best interests of [the pet]’.[195]

If the guardian model is held to be closely analogous to guardian and human child, we have something akin to the full personhood model, with correspondingly strict obligations. A good guardian, as Fruh and Wirchnianski note, has a ‘basic concern’ or ‘foundational drive ... to fulfill her child’s best interests’.[196]

Fruh and Wirchnianski believe such a guardianship model is inappropriate for pets. It makes the pet’s interests ‘a near constant and often-decisive presence in the guardian’s deliberations’, and introduces ‘a problematic moral priority for [their] companion animals’[197] (which they illustrate with hypotheticals about dogs and humans on a lifeboat, choosing whether to give braces to one’s daughter or one’s dog, and deciding whether to save a beetle from a burning building).[198]

Will Kymlicka has an approach which, while not strictly liminal — it is grounded in an alternate basis than personhood, not partial personhood[199] — could have something of the same effect. In his view, arguing through a personhood/property framework presents reformers with a dilemma. Substantial change is not possible while animals are still viewed as property. While they are things, they will be exploited. But extending personhood to animals is not politically feasible.[200] His solution ‘is to get domesticated animals included into other legal categories such as “workers” or “members of the family” which carry with them social standing and social rights, even if not full legal personhood’.[201]

[H]aving taken [domesticated animals] out of the wild, and bred them to live and work alongside us, we must accept that they are now members of a shared society, and that society belongs to them as much as to us.’[202]

He refers to this as the ‘social recognition strategy’.[203] Companion animals, for example, are recognised as part of the family unit, with more than instrumental value.[204]

Because companion animals are recognised as family members, and referred to as such (in a display of ‘interspecies we-ness’),[205] some of the protections that ordinarily apply to family members would also apply to them: including some drawn from child custody cases.[206]

Kymlicka does not think this model is more just. He explicitly states that justice for domesticated animals requires recognition of their personhood. Personhood is what grants important negative rights — ‘such as the right not to be killed, experimented on or enslaved’.[207] ‘Membership without personhood is a radically precarious and unjust status.’[208] However, the strategy is politically feasible, and may help make the personhood model more viable in the long-term.[209]

It is also possible to focus directly on the ‘special relationship’ between companion animals and humans, and hold that our ‘primary moral obligation ... is to develop, nurture, respect, and protect’ it.[210] Jean Harvey favours such a model as an antidote to a ‘utilisation with safeguards’ paradigm (in which the animal’s welfare is likely to be protected only as far as is convenient for humans). The ethic arises from ‘the deep and abiding affection the animals give and seek, the profound emotional and physical vulnerability they face because of it, and the blunt fact that humans in general control the relationship and have the power either to treasure or betray their animal companions’.[211] Treating animals purely as property undermines the special relationship: indeed, has the potential to sever it completely.

Putting the ‘special relationship’ front and centre in a pet custody dispute takes us far from a property model. It could lead, for example, to a recognition of the need to facilitate the maintenance of a relationship with both ‘parents’. That does not sit well with the one-time distribution decision at the core of the property model, but it is analogous to the Family Law Act’s model for children.

Part-way approaches may not be as intellectually satisfying as a straight ‘personhood’ or ‘property’ analysis, if one seeks closure. Because the latter are binary philosophies (it is a person, and has rights, or it is property, and does not), they are easy to apply. A model recognising a thing that is not quite property, not quite person, but with aspects of both — a type of liminal being — could be a difficult thing to ‘square’, conceptually. There are also serious questions as to how much good such a half-measure can do. Mackinnon has asked: ‘If qualified entrance into the human race on male terms has done little for women — granted, we are not eaten, but then that is not our inequality problem — how much will being seen as humanlike, but not fully so, do for other animals?’[212]

Still, the liminal model meets the community and the courts closer to where they are at. Favre writes: ‘If the next step for animal jurisprudence continues to be spoken in terms of traditional property concepts, then the judges and lawmakers will be more comfortable in pushing the process along.’[213] Indeed, in the New York case of Hennet v Allan,[214] Lynch J indicated the courts should ‘take the next step in recognizing that pets are more than just “personal property” when it comes to resolving a dispute between owners’ and view them as a ‘special category of property.’[215]

V Conclusion: A Special Place in the Heart, A Special Place in the Law

It is difficult for the law to be more sensible than the jumble of conflicting concepts and ingrained doublethink it must apply to.[216] As long as humanity’s relationship with nonhuman animals is riddled with inconsistency, jurisprudentially unsatisfying legislation may be the best we can hope for. To resolve the conflicting, unsatisfying and inconsistent nature of today’s laws; it makes sense to recognise pets as more than property in the law. As such, the authors suggest that Australia would be well served by adopting an alternative model (without expressing a preference for a particular model) for pet custody, which would better accord with modern Australian attitudes towards pets. Currently, Australia’s pet custody model is anachronistic and no longer in sync with Australian attitudes. In 1994, in the US case of Bueckner v Hamel, Justice Andell relevantly stated:

The law must be informed by evolving knowledge and attitudes. Otherwise, it risks becoming irrelevant as a means of resolving conflicts. Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property.[217]

As Kymlicka writes, ‘A lot is happening in animal law, around the world, at a speed that makes it difficult to keep up with the changes.’[218] Recent international developments have made pet custody more thinkable — and less socially unconventional — than it used to be. There is ‘a growing gulf between the self-understandings of average citizens and the rules of the law, which is a source of growing frustration for many citizens, who are calling for the law to move [companion animals] out of the property box into the category of family member.’[219] ‘The social reality is that [companion animals] are members of the family, and whenever the law is so far out of touch with social realities, it needs to adapt, and indeed it is adapting on these issues of custody ... ’[220]

Whether Australian jurisdictions should legislate to accommodate pet custody is a complex question with many moving parts. ‘[C]ustody battles are expensive, difficult, and emotionally tolling experiences for all parties involved’, burdensome on the courts, and complicated, given the ‘enormous amount of information’ a court needs to make a best interests finding.[221] It is not clear that extending those battles to pets would be practical, all things considered, and it is not clear what shape reform should take. What is clear is that there is enough intellectual substance behind the core ideas of pet custody not to be flippant or dismissive. Modern child custody, after all, is only possible because of a paradigm shift. Children, too, were once viewed as property, subject to the rights of an owner.[222]

Given the unique relationship between pets and humans in Australia, this article has argued that family law should not consider animals to be mere chattels. Such a regime may better reflect the special place that companion animals have in Australian society. It would consider our social understanding that pets are family members.

As the Court stated in the New York case Travis v Murray, ‘matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children’.[223] ‘If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet.’[224] It is quite possible that many Australian pet owners might agree with such a statement.


* Adam Jardine BA(Hon) LLB(Hon) is a former lecturer in law. Adam dedicates this article to late dog, Pierre.

** Dr Marilyn Bromberg BBA (Hon), LLB (Dist), PhD, GCUT is the Director Higher Degrees Coursework at the University of Western Australia Law School. Dr Bromberg dedicates this article to her dog, Hero.

*** Nicholas Cardaci LLB, B.Comm (Finance); is an Australian lawyer, formerly for the Australian Securities & Investments Commission, as well as an author of peer-reviewed research. Nicholas dedicates this article to his much-loved cat, Smudge.

The authors thank Associate Professor Adiva Sifris for her valuable feedback on the article.

1 Nonhuman Rights Project, ‘Clients: Beulah, Karen, and Minnie’, Nonhuman Rights Project (16 December 2020) <>.

[2] Ibid.

[3] Nonhuman Rights Project Inc v R W Commerford and Sons Inc (Conn Super Ct, No LLICV175009822S, 26 December 2017).

[4] Nonhuman Rights Project, ‘Litigation’, Nonhuman Rights Project <>.

[5] Steven M Wise, Rattling the Cage: Towards Legal Rights for Animals (Perseus, 2000) 4. Wise’s positions rests heavily on the cognitive sophistication of chimpanzees and bonobos. See At Ch 10.

[6] Tilikum v Sea World Parks & Entertainment Inc (2012) 842 F Supp 2d (‘Tilikum’).

[7] Naruto v Slater (2018) 888 F 3d 418 (‘Naruto’).

[8] Alaska Stat §§ 25.24.160, 25.24.200(f), 25.24.220(d), 25.24.230(a) (2019). Alaska Stat § 25.24.990 (2019) defines ‘animal’ as ‘a vertebrate living creature not a human being’. Fish were initially excluded, but not in the legislation’s final form. See Morgan Chandler Handy, ‘The “De-Chattelization” of Companion Animals through Family Law Legislation: How Alaska’s HR 147 Has Dismantled the Traditional Property Law View of Pets’ (2018) 52(1) Family Law Quarterly 169.

[9] See 750 Ill Comp Stat 5/503 § (n) (2019); Cal Fam Code § 2605 (2019). See Pamela Babcock, ‘Are Pets Assets or Part of the Family? States Are Passing Laws That Give Judges a Longer Leash in Divorce Custody Proceedings’ (2019) 105(5) ABA Journal 18; Nicole R Pallotta, ‘Chattel or Child: The Liminal Status of Companion Animals in Society and Law’ 8(5) Social Sciences 158, 11.

[10] Karin Brulliard, ‘In a First, Alaska Divorce Courts Will Now Treat Pets More like Children’, Washington Post (online, 24 January 2017) <>. Favre had foreseen the possibility much earlier: see David Favre, ‘A New Property Status for Animals: Equitable Self-Ownership’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 234, 236.

[11] Cf the symbolic change in terminology from ‘owner’ to ‘guardian’ that occurred in Rhode Island in 2001: See Handy (n 8); Susan Hankin, ‘Making Decisions About Our Animals’ Health Care: Does It Matter Whether We Are Owners or Guardians?’ (2009) 2 Stanford Journal of Animal Law and Policy 1, 2 (‘Making Decisions About Our Animals’ Health Care’).

[12] RSCPA Australia, ‘How Many Pets Are There in Australia?’, RSPCA Knowledgebase (6 March 2020) <>.

[13] An Orwellian term famously coined in George Orwell, 1984 (Vintage UK, 2021). Doublethink is ‘a simultaneous belief in two contradictory ideas’: See Merriam-Webster, ‘Doublethink’, Dictionary <>.

[14] LexisNexis, Encyclopaedic Australian Legal Dictionary (at 6 December 2019) ‘Custody’.

[15] Western Australia has its own legislation, the Family Court Act 1997 (WA). This Act essentially mirrors the Commonwealth legislation. This situation was brought about by the State’s refusal to refer the relevant legislative power to the Commonwealth. See CCH Intelliconnect, Australian Family Law and Practice Premium Commentary (at 6 December 2019) [ 13-015], [ 16-005].

[16] Commonwealth, ‘Parliamentary Debates, House of Representatives, 8 December 2005’ (Philip Ruddock, Attorney-General) 11.

[17] On the types of order, See Family Law Act 1975 (Cth) s 64B(2) (‘FLA’).

[18] Goode v Goode [2006] FamCA 1346.

[19] Drake v Drake [2014] FCCA 2950, [208]; FLA (n 17) s 64B(2)(c).

[20] See the note in FLA (n 17) s 61DA(1).

[21] See Ibid s 65DAA. (Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances). On what ‘consider’ means in this context, See Goode v Goode (2006) 206 FLR 212, 229; FLA (n 17) s 63DA(2)(a) which concern the advice that advisers must give.

[22] FLA (n 17) ss 65DAA(2)–(3), 63DA(2)(b). See also Commonwealth (n 16) 10.

[23] Britt v Parcell [2021] NSWDC 464 (‘Britt’).This case which although not a decision of the Family Court as the relationship was for less than two years did not fall the de facto relationship jurisdiction of the Family Court

[24] Ibid [6].

[25] Ibid [9], [15].

[26] Ibid [10]-[14]. Nelson DCJ did also consider the effect of the Companion Animals Act 1988 (NSW). Though this is less relevant to the subject of animals as property, as the Act is more concerned with pet registration and owners’ responsibilities and ‘does not otherwise amend the law relating to the ownership of chattels.’ See especially Britt (n 23) [25]-[26]. See generally Ibid [16]-[26].

[27] ‘“Goods” is a word apt to describe all personal chattels that are corporeal.’: Britt (n 23) [12].

[28] Ibid [10]-[12]. The reference to Megarry and Wade is a reference to Robert Megarry and HWR Wade, The Law of Real Property (Stevens & Sons Ltd, 3rd ed, 1966).

[29] Britt (n 23) [25].

[30] Foreshadowed early in the judgment by the heading ‘A dog is a chattel personal’ above Ibid [9]. See also Ibid [12], [15].

[31] Britt (n 23) [26].

[32] Chow v Chang [2021] VMC 1 (‘Chow’).

[33] Ibid [1].

[34] Ibid.

[35] Ibid [2].

[36] Ibid [27].

[37] Ibid [2].

[38] Ibid [8]-[15].

[39] Ibid [32].

[40] Ibid [30]-[34].

[41] See Downey v Beale [2017] FCCA 316, [10], [11], [14], [45]-[49] (‘Downey’).

[42] Gaynor v Tseh [2018] FamCA 164.

[43] Ibid [1], [4].

[44] Ibid [2], [3].

[45] Ibid [8].

[46] Ibid [9].

[47] Ibid [8], [9]; FLA (n 17) ss 90SM, 90SF.

[48] Gaynor v Tseh (n 42) [13]-[14].

[49] Ibid [4], [13]-[14]. Cronin J cited, inter alia, that the dog had been in the respondent’s possession for some time, and so there was an apparent lack of the required urgency for an interlocutory order.

[50] Davenport v Davenport (No2) (2020) 62 FamLR 222.

[51] Ibid [1].

[52] Ibid [39]-[41].

[53] Ibid [41].

[54] Duboff v Simpson [2021] ONSC 4970, [15] (‘Duboff’).

[55] Baker v Harmina [2018] NLCA 15 (‘Harmina’).

[56] Ibid [12]. This case has received favourable treatment in Canada. It was subsequently applied in the more recent Canadian cases of Poole v Ramsey-Wall [2021] BCCRT 789, [16]; Duboff (n 54) [15]-[17].

[57]Jessica Foxx, ‘The Use of Agreements in the Resolution of Pet Custody Disputes’ (2017) 85(2) UKMC Law Review 455, 460.

[58] ‘An order for sharing does not end the conflict. Instead it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life [...] [t]hese opportunities can be particularly tempting for former romantic partners’: Harmina (n 55) [22], [23] (White JA). See also Prim v Fisher [2009] Vt Super Ct S1464-09 (‘Prim’); Brown v Larochelle [2017] BCPC 115, [14].

[59] Arrington v Arrington 613 SW 2d 565, 569 (‘Arrington’); Foxx (n 57) 456. See also Clark v McGinnis, 298 P 3d 1137 (Kan Ct App, 2013). Being part of the same biological order will not assist. ‘The monkey is not a child. Callous as it may seem, the monkey is a chattel, that is to say, a piece of property’: Nakhuda v Story Book Farm Primate Sanctuary [2013] ONSC 5761, [4] (Vallee J).

[60] Timothy L Arcaro, ‘Should Family Pets Receive Special Consideration in Divorce’ (2017) 91(6) Florida Bar Journal 22, 24; Bueckner v Hamel (1994) 886 SW 2d 368, 373–8 (‘Bueckner’); Downey (n 41) [19]; Hament v Baker (2014) 97 3d 461, 463 (‘Hament’); Morgan v Kroupa (1997) 702 2d 630, 632–3 (‘Morgan’); Prim (n 58) 22.

[61] Duboff (n 54) [17]; Harmina (n 55) [11].

[62] Arcaro (n 60) 24; L Morgan Eason, ‘A Bone to Pick: Applying a “Best Interest of the Family’ (2017) 62(1) South Dakota Law Review 79, 100; Hament (n 60) 465; Juelfs v Gough (2002) 41 P 3d 593, 596 (‘Juelfs’); Travis v Murray (2013) 42 Misc 3d 447, 460–1 (‘Travis’). However, See Eason 101; Juelfs 597.

[63] Duboff (n 54) [18].

[64] See e.g., the reasoning of, and cases cited in, Coates v Dickson [2021] ONSC 992, [8], [10], [17]-[19] (‘Coates’).

[65] Harmina (n 55) [49] (Hoegg JA).

[66] Ibid [52] (Hoegg JA, dissenting).

[67] Coates (n 64) [8], [9]; Duboff (n 54) [18].

[68] Richard A Epstein, ‘Animals as Objects, or Subjects, of Rights’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 143, 156.

[69] Western Australia, for example, has an Animal Welfare Act 2002 (WA). On Australian animal protection rules, in the context of companion animals specifically, See Steven White, ‘Companion Animals: Members of the Family or Legally Discarded Objects?’ [2009] UNSWLawJl 42; (2009) 32(3) UNSW Law Journal 852, 860–5 (‘Companion Animals’).

[70] As Favre puts it, ownership of a pet is distinguished from ownership of a rock ‘primarily by the fact that prevention-of-cruelty laws apply to owners of pets but not to owners of rocks’: Favre (n 10) 238; See also Pallotta (n 9) 4.

[71] See, e.g., Animal Welfare Act 2002 (n 69) s 19(3).

[72] Cass R Sunstein, ‘Introduction: What Are Animal Rights’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 3; Gary Francione, ‘Animals – Property or Persons?’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 110–12; Jean Harvey, ‘Companion and Assistance Animals: Benefits, Welfare Safeguards, and Relationships’ in Pets and People: The Ethics of Companion Animals (Oxford University Press, 2017) 4; Richard A Posner, ‘Animal Rights: Legal, Philosophical, and Pragmatic Perspectives’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 51, 70–1; Peter Singer, Animal Liberation (Pimlico, 2nd ed, 1995) 244 (‘Animal Liberation’). This is a Kantian view. ‘[H]e who is cruel to animals becomes hard also in his dealings with men’: Immanuel Kant, Lectures on Ethics, Tr Louis Infield (Harper Torchbooks, 1963) 240. See also Martha C Nussbaum, ‘Beyond “Compassion and Humanity”: Justice for Nonhuman Animals’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 299, 300.

[73] Pallotta (n 9) 4 n 16.

[74] Ralph A DeMeo, ‘Defining Animal Rights and Animal Welfare: A Lawyer’s Guide’ 91(7) Florida Bar Journal 42, 47; Steven White, ‘Standards and Standard-Setting in Companion Animal Protection’ [2016] SydLawRw 21; (2016) 38 Sydney Law Review 463, 468, 488–9 (‘Standards’).

[75] White (n 74) 463–4, 467.

[76] Tilikum (n 6) 1264.

[77] Francione (n 72) 124.

[78] See Ford v Wiley [1889] UKLawRpKQB 92; (1889) 23 QBD 203, 209–10 (Lord Coleridge CJ). See also Kyle Fruh and Wolodymyr Wirchnianski, ‘Neither Owners nor Guardians: In Search of a Morally Appropriate Model for the Keeping of Companion Animals’ (2017) 30(1) Journal of Agricultural and Environmental Ethics 55, 57; White (n 69) 861; White (n 74) 467 n 23, 470, 472; David J Wolfson and Mariann Sullivan, ‘Foxes in the Hen House — Animals, Agribusiness, and the Law: A Modern American Fable’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 212–3.

[79] Sunstein (n 72) 8.

[80] Speaking of companion animals specifically, See White (n 69) 865.

[81] Will Kymlicka, ‘Social Membership: Animal Law beyond the Property/Personhood Impasse’ (2017) 40(1) Dalhousie Law Journal 123, 126.

[82] Ibid 127. See also Harvey (n 72) 4; White (n 74) 472. Kymlicka goes so far as to decry the use of the phrase ‘animal protection laws’ and assert that what we really have are ‘animal use laws’. ‘At its core, animal law authorizes the harming of animals: indeed, that is its fundamental legal purpose, to provide legal cover to the harming of animals’: Kymlicka (n 81) 126–7.

[83] Francione (n 72) 120.

[84] Ibid 117, 120, 122; Fruh and Wirchnianski (n 78) 57.

[85] White (n 74) 488.

[86] Francione (n 72) 108.

[87] Ibid 119.

[88] Ibid 116.

[89] For example, Singer points out that, as children, we (who are not raised by vegetarian parents) are given animal flesh to consume, long before we are in a position to judge the morality of eating animals, while at the same time we are taught love and affection for animals. ‘[R]ather than having one unified attitude to animals, the child has two conflicting attitudes that coexist, carefully segregated so that the inherent contradiction between them rarely causes trouble’. See Singer (n 72) 213–4.

[90] Kymlicka (n 81) 129 n 17. See also Pallotta (n 9) 24.

[91] Animal Welfare Act 1992 (ACT) s 4A(1)(a).

[92] Animal Welfare Act 1999 (NZ) s 9 states in relation to Part 1 of the Act: ‘The purpose of this Part is to ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals. [...] [This Part 1] requires owners of animals, and persons in charge of animals, to take all reasonable steps to ensure that the physical, health, and behavioural needs of the animals are met’

[93] Premier of Victoria, the Honourable Daniel Andrews (Press Release, 20 October 2020) <>.

[94] Victorian Government, A New Animal Welfare Act for Victoria: Policy Proposals (October 2020) 2, Item 1.1 <>.

[95] James Yeates and Julian Savulescu, ‘Companion Animal Ethics: A Special Area of Moral Theory and Practice?’ (2017) 20(2) Ethical Theory and Moral Practice 347, 350.

[96] Animal Medicines Australia, Pet Ownership in Australia (2016) 9 <> (‘Pet Ownership’).

[97] Ibid 9, 16. For comparison, 65% of US households have a pet.

[98] Ibid 9–10.

[99] Ibid 10, 49. According to the American Veterinary Medical Association’s US Pet Ownership & Demographics Sourcebook 2017–18, the figures in the US for the ‘family’ designation are 85% of dog owners and 76% of cat owners. Only 1% and 3% respectively considered their pets to be property: Humane Society of the United States, ‘Pets by the Numbers’, Animal Sheltering <>. Pallotta notes that saying a pet is a family member and treating them as a family member are two different things: Pallotta (n 9) 17, 19. This is a conclusion this article strongly supports.

[100] Eason (n 62) 83–4.

[101] ‘[O]f the top dog and cat names in 2016, most are human names’: Animal Medicines Australia (n 96) 57.

[102] In an American Animal Hospital Association survey, 40 percent of married female dog owners reported receiving more emotional support from the dog than their spouse or children: See Hal Herzog, ‘Why People Care More About Pets Than Other Humans’ (13 April 2015) Wired <>. See also Foxx (n 57) 457.

[103] Indeed, rules and practices for emergency evacuation changed in the US after Hurricane Katrina to reflect the fact people would not abandon their pets during the crisis: Harvey (n 72) 4.

[104] Animal Medicines Australia (n 96) 29, 40. An estimated $12.2 billion in pet products and services was spent by Australian households in a twelve-month period reported in 2016: at 31. For American statistics, See Pallotta (n 9) 6–7. On the range of non-essentials this expenditure covers, See Andrea Laurent-Simpson, ‘“They Make Me Not Wanna Have a Child”: Effects of Companion Animals on Fertility Intentions of the Childfree’ (2017) 87(4) Sociological Inquiry 586, 588. Pallotta notes that the (US) media favours stories about extravagant owners ‘wasting’ money on pets, but ‘individuals experiencing poverty or homelessness often put their companion animals’ needs ahead of their own’: Pallotta (n 9) 7.

[105] ‘People do not plan memorial services, or invest in serious medical treatment for their books or lawnmowers’: Kathy Hessler, ‘Mediating Animal Law Matters’ (2007) 2 Journal of Animal Law & Ethics 21, 28. See Pallotta (n 9) 12; Bueckner (n 60) 376; Harmina (n 55) [48] (Hoegg JA); Strickland v Medlen (2013) 397 SW 3d 184, 185 (‘Strickland’); Yeates and Savulescu (n 95) 351.

[106] Bueckner (n 60); Downey (n 41) [49]; Gardiner‑Simpson v Cross [2008] NSSM 78, [3] (‘Gardiner-Simpson’); Houseman v Dare (2009) 966 2d 24 (‘Houseman’) (on the importance of making specific performance available in disputes about pet ownership); Harmina (n 55) [20]–[21]; Animal Medicines Australia (n 96) 50; Rabideau v City of Racine (2001) 627 NW 2d 795, 798 (‘Rabideau’); Travis (n 62) 452 (Cooper J cites a Gallup Poll indicating most pet owners would not trade their pet for $1 million).

[107] Few of the sources consulted for this article failed to make this point, but See Bueckner (n 60) 378. Andell J noted: ‘[C]ourts should not hesitate to acknowledge that a great number of people ... treat their pets as family members. Indeed, for many people, pets are the only family members they have.’ As for the negative side of pets being considered family, Pallotta notes that a family member can be a target of family violence (and that pets frequently are). Also, according to Pallotta, ‘[C]ompanion animals are part of the abuser’s web of dominance and control’: Pallotta (n 9) 8.

[108] George Orwell, Animal Farm (Project Gutenberg Australia, 1945) Ch 10 <>.

[109] White (n 74) 854; Pallotta (n 9) 3 n 10, 10 34, 15.

[110] Rabideau (n 106) 798 (Bablitch J); Foxx (n 57) 465, 467; Pallotta (n 9) 12–3; Whitmore v Whitmore (Va Ct App, No 1644-10-4, 22 February 2011) (‘Whitmore’).

[111] Nick Pendergrast, ‘Your Dog Isn’t a “Fur Baby”, It’s Your Property’, ABC News (online, 17 February 2018) <>.

[112] White (n 69) 854; Foxx (n 57) 455; Pallotta (n 9) 3.

[113] Animal Medicines Australia (n 96) 25.

[114] ‘[P]arents are typically not allowed to drop their children off at a shelter facility’: Pallotta (n 9) 18. See also DeMeo (n 74) 42. See generally Pallotta (n 9) 17–19.

[115] White (n 74) 877.

[116] Catharine A Mackinnon, ‘Of Mice and Men: A Feminist Fragment on Animal Rights’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 263.

[117] Pallotta (n 9) 3.

[118] Ibid.

[119] Dafna Shir-Vertesh, ‘“Flexible Personhood:” Loving Animals as Family Members in Israel’ (2012) 114(3) American Anthropologist 420, 420; Pallotta (n 9) 18.

[120] Pallotta (n 9) 17.

[121] Yeates and Savulescu (n 95) 347. We should note another conception of the ‘pets as family’ idea: that of a marketing strategy with about as much real emotion behind it as the commercialised love (or guilt) on display in a Valentine’s card. See Pallotta (n 9) 18–19.

[122] See above at II. ‘Custody’ of Children in Australia

[123] FLA s 60CC(3)(i).

[124] FLA s 60CC

[125] CCH Intelliconnect (n 15) [ 16-210]; Arcaro (n 60) 24; In re Marriage of Berger (2013) 834 NW 2d 82 (‘Berger’); Finn v Anderson (2019) 64 Misc 3d 273, 279 (‘Finn’) (not a separation case, but one in which the emotional attachment of children to a cat helped determine where the best interests of all concerned lay). See also Aho v Aho (Mich Ct App, No 304624, 23 October 2012).

[126] The authors are adapting the language of FLA (n 15) s 68LA(2)(a).

[127] Australia has child support legislation which means an actual maintenance order under the Family Law Act is only required in certain circumstances. See FLA (n 17) Pt 7 Div 7. ‘Is there such a thing as doggie support?’: Babcock (n 9). See also Eason (n 62) 93.

[128] Yeates and Savulescu (n 95) 352.

[129] Naruto (n 7) 432. On pet custody specifically, See Houseman (n 106) 28.

[130] Nuzzaci v Nuzzaci (Del Fam Ct, No CN94-10771, 19 April 1995) (‘Nuzzaci’); Dubin v Pelletier (RI Super Ct, CA No WC 10-0825, 21 November 2012) (‘Dubin’).

[131] Travis (n 62) 459; Arcaro (n 60) 25; Eason (n 62) 95; Finn (n 125) 276; Foxx (n 57) 468; Houseman (n 106) 28; Morgan (n 60) 633. Cf Finn (n 125) 277 (Larson J): 'This Court is not persuaded that a court could not evaluate the “best interests” of a pet.’ Judge Larson located the relevant difference in the notion that ‘the “best interests” of the child standard is based on the implicit understanding that the ultimate goal of the Courts is to ensure that the child is nurtured into independent adulthood’, and ‘[i]t is the future adult that must be the Court’s primary consideration’: a consideration that does not apply with pets.’.‘

[132] However in Finn (n 125) 279 — a case in which the plaintiffs took in and cared for a cat they thought was a stray, but was actually owned by the defendant — the judge did suggest that the cat might have ‘voted with its feet’ when it escaped from the plaintiffs’ home and made its way back to the defendant. See also Kemp v Osmond [2017] NSSM 25, [57].

[133] Ramseur v Askins (2014) 997 NYS 2d 101 (‘Ramseur’).

[134] Hament (n 60), affirming the trial court’s approach. See also Foxx (n 57) 466. Hanent also indicated that the husband’s habit of treating the dog ‘like a dog’ was preferable to the wife’s habit of treating it ‘like a child’: Hament (n 60) 462, 464. Cf England v England (2015) 454 SW 3d 912, 921 (‘England’) where a degree of ‘mothering’ (my term) of the parties’ ‘baby’ (the wife’s term), a dog, seems to have been taken as a positive.

[135] Mitchell v Snider (Civil Ct NY City, No CV-017738-14/NY, 18 March 2016) (‘Mitchell’).

[136] Placey v Placey (2020) 51 3d 374, 379 (‘Placey’).

[137] Ibid (Thomas J).

[138] England (n 134); Foxx (n 57) 466.

[139] SH v MS (NY Sup Ct, No 309513/17, 7 June 2019).

[140] Jessica Berg, ‘Of Elephants and Embryos: A Proposed Framework for Legal Personhood’ (2007) 59(2) Hastings Law Journal 369, 372.

[141] White (n 69) 875.

[142] Pendergrast (n 111) (noting support for dolphin personhood in Indian law).

[143] Feger v Warwick Animal Shelter (2008) 59 AD 3d 68, 72 (‘Feger’).

[144] In a different context (damages for loss of pet companionship), Willett J of the Texas Supreme Court noted in Strickland (n 105) that ‘people form genuine bonds with a menagerie of animals, so which “beloved family pets” ... would merit such preferred treatment? Domesticated dogs and cats only[?] Furry, but not finned or feathered? What about goldfish? Pythons? Cockatiels?’See also Rabideau (n 106) 798–9, 802.

[145]James Rachels, ‘Drawing Lines’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 162, 164. Cf Mackinnon (n 116) 271. On different options for defining the scope of animals subject to ‘pet custody’, See Foxx (n 57) 472–3. The issues Foxx notes are not about personhood. For example, she notes that ‘[a] court or attorney may encounter ethical concerns if they allow a couple to spend a large amount of money litigating custody of an animal with a very short life expectancy’: At 473.

[146] Wise focuses on the degree to which a creature exhibits ‘practical autonomy’. Practical autonomy is not necessarily possessed only by human-like creatures or close relatives. However, we are surer that close relatives (like chimpanzees and bonobos) have it than more distant ones: Steven M Wise, ‘Animal Rights, One Step at a Time’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 19, 39–40. See also Daniel Davison-Vecchione and Kate Pambos, ‘Steven M Wise and the Common Law Case for Animal Rights: Full Steam Ahead’ (2017) 30(2) Canadian Journal of Law and Jurisprudence 287, 295.

[147] See Davison-Vecchione and Pambos (n 146) 288, 295; DeMeo (n 74) 42–4; Epstein (n 68) 157; Rachels (n 145) 164. Cf Francione (n 72) 129–31.

[148] Kymlicka (n 81) 133.

[149] ‘Oddly, the sentimental attachment to animals is not well-correlated with genetic closeness, as is implicit in my noting that we can like some animals more than we like people. We are more closely related genetically to chimpanzees than to cats or dogs or falcons or leopards, but most of us like chimpanzees less than these other animals, which we find more glamorous or more beautiful.’: Richard A Posner, ‘Animal Rights’ [2000] YaleLawJl 12; 110 The Yale Law Journal 527, 536.

[150] ‘Many people who love and admire dogs as family members do so because of the traits that dogs often embody. These represent some of the best of human traits, including loyalty, trust, courage, playfulness, and love. ... At the same time, dogs typically lack the worst human traits, including avarice, apathy, pettiness, and hatred.’: Bueckner (n 60) 377 (Andell J).

[151] Cf Harmina (n 55) [48] (Hoegg JA). Hoegg JA noted: ‘[d]ogs are possessive of traits normally associated with people, like ... the ability to communicate and follow orders ... ’ (emphasis added).

[152] Yeates and Savulescu (n 95) 352–3.

[153] They can even learn their name, be trained to walk with a leash, and be toilet trained: RSCPA Australia, ‘Can Pigs Be Kept as Pets?’, RSPCA Knowledgebase (1 May 2019) <>. See also Singer (n 72) 119. ‘Pigs are curious and intelligent creatures and can make wonderful companion animals.’: Department of Primary Industries and Regional Development (WA), ‘Small Scale Pig Ownership’ (1 May 2018) <>.

[154] On a Western Australian government website about pigs promising that pigs can make wonderful companion animals’, one is also assured they can offer extra income from the ‘lucrative markets for pork’: Department of Primary Industries and Regional Development (WA) (n 153). That is, of course, less surprising when one reads the closing thanks from Australian Pork Ltd for assistance in producing the material.

[155] Indeed, children are so self-evidently people that one of the proffered justifications for refusing to recognise personhood in something — its inability to take up responsibilities in exchange for the rights it receives — is simply not applied to them. It is obvious they are the exception. There is no need to make it an explicit stance. See People ex rel Nonhuman Rights Project, Inc v Lavery, 124 AD 3d 148, 152 n 3 (Peters PJ) (Sup Ct App Div, 2014):

To be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility. Accordingly, nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise.

[156] Sunstein (n 72) 1.

[157] Francione (n 72) 132; Pendergrast (n 111); Singer (n 72) 2; Peter Singer, ‘Ethics beyond Species and beyond Instincts: A Response to Richard Posner’ in Animal Rights: Current Debates and New Directions (Oxford University Press, 2004) 79.

[158] Singer (n 72) 2.

[159] ‘It matters not whether the particular form of slavery is “humane” or not; we condemn all human slavery’: Francione (n 72) 124.

[160] Kymlicka (n 81) 131.

[161] ‘A liberation movement demands an expansion of our moral horizons. Practices that were previously regarded as natural and inevitable come to be seen as the result of an unjustifiable prejudice’: Singer (n 72) xii. For any sort of animal personhood to be plausible, it would also be necessary to disabuse the public of certain misconceptions regarding the implications: such as the notion that, with personhood rights, ‘a primate would be able to run for president of the United States’:DeMeo (n 74) 44. Note that technically, they can, given that humans are primates.)

[162] Davison-Vecchione and Pambos (n 146) 306.

[163] White (n 74) 853; Pallotta (n 9) 1.

[164] White (n 69) 875 n 116.

[165] On ‘humancentric’ vs animal rights approaches in general, see Posner (n 149) 537.

[166] Note the comment in Ineke R van Herwijnen et al, ‘The Existence of Parenting Styles in the Owner-Dog Relationship’, ed I Anna S Olsson (2018) 13(2) PLOS ONE e0193471, 3 that ‘[d]ogs seem to exploit our tendencies towards empathy, nurturing and anthropomorphism, and tap into mechanisms that underlie parent-child relationships.’

[167] See Henderson v Henderson [2016] SKQB 282, [30] (‘Henderson’); Houseman (n 106).

[168] Gardiner-Simpson (n 106) [8]; Kemp v Osmond (n 132) [7].

[169] See Eason (n 62) 95; Harvey (n 72) 5.

[170] Handy (n 8); Houseman (n 106).

[171] See, for example, Jarvis v Weston [2007] FamCA 1339, where a child’s attachment to his dog and fears for its safety led the Court to make orders designed to keep the dog and the boy together.

[172] Corso v Crawford Dog and Cat Hospital, Inc (1979) 415 NYS 2d 182. This was a bizarre case in which an animal hospital substituted the body of a cat for that of a poodle in a funerary casket to hide the fact it had wrongly disposed of the latter. Unfortunately, the owner opened the casket at the funeral.

[173] Ibid 183.

[174] See Babcock (n 9). See also Herwijnen et al (n 166); Laurent-Simpson (n 104); Pallotta (n 9) 2.

[175] Gail Gross, ‘The Benefits of Children Growing Up With Pets’, HuffPost (7 June 2015) <>.

[176] Montemuro J in Desanctis v Pritchard (2002) 803 2d 230, 232: stating that this is the correct analogy. See also Arcaro (n 60) 24.

[177] See Juelfs (n 62); Handy (n 8).

[178] Arcaro (n 60) 23–4; Arrington (n 59). See also Van Arsdale v Van Arsdale (Conn Super Ct, No FA114021194, 15 March 2013).

[179] This is based largely on the need for courts to provide the parties with finality in judgments and their unwillingness to ‘get into the flora or fauna visitation business’: Nuzzaci (n 130); Babcock (n 9); Arcaro (n 60) 22, 25. See also Bennett v Bennett (1995) 655 2d 109; DeMeo (n 74) 44; Eason (n 62) 86, 94–5, 100–1; Foxx (n 57) 467–8; Hament (n 60); Prim (n 58); Travis (n 62) 460–1; Whitmore (n 110).

[180] Morgan (n 60) 633; State v Sheperd, (2017) 170 3d 616, 623. See also Andell J in Bueckner (n 60) 377 (‘simple property concepts cannot reflect the complex reality of the relationships between humans and their pets. ... I consider them to belong to a unique category of “property” that neither statutory law nor caselaw has yet recognized’).

[181] DeMeo (n 74) 44.

[182] Arcaro (n 60) 23–4; Eason (n 62) 92–4; Travis (n 62) 456–7. See, e.g., Placey (n 136) 379.

[183] Travis (n 62) 457.

[184] Morgan (n 60) 633; Houseman (n 106) 28; Travis (n 62) 457–9.

[185] Travis (n 62) 458–9. Cf Adjudicator Slone in the Nova Scotia Small Claims Court case of Kemp v Osmond (n 132) [3] in which it was noted ‘[i]n a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the “best interest of the dog,” as there are for children in the Family Courts.’

[186] Travis (n 62) 455–6 (Cooper J).

[187] Eason (n 62) 98–100.

[188] Travis (n 62) 460; Foxx (n 57) 468–9. ‘[T]he court considers who is in the best position to meet the dog’s daily physical and emotional needs based on a healthy, active lifestyle, time constraints, type of home and yard, emotional bond, safety concerns, financial ability, opportunities to socialize with other dogs, access to dog-friendly parks and outdoor activities and access to veterinary care and pet stores.’: Per Edwards J in Mitchell (n 135).

[189] Raymond v Lachmann 264 AD 2d 340 (Sup Ct App Div, 1999).

[190] Travis (n 62); Arcaro (n 60) 24; Finn (n 125); Mitchell (n 135); SH v MS (n 139).

[191] SH v MS (n 139); Finn (n 125) 277–8; Hennet v Allan (2014) 43 Misc 3d 542, 546 (‘Hennet’); Mitchell (n 135); Ramseur (n 133). Per Cooper J’s estimation in Travis (n 62) 449, 453‘pet custody’ cases in New York were still a rarity at the time of that judgment (2013). Further, Cooper J described a ‘slow but steady move in New York case law away from looking at dogs and other household pets in what may be seen as an overly reductionist and utilitarian manner’. Cf Dubin (n 130) concerning Rhode Island.

[192] See e.g., Eason (n 62). See also Handy (n 8).

[193] Favre (n 10) 234, 242.

[194] Ibid 243.

[195] Ibid 244.

[196] Fruh and Wirchnianski (n 78) 61.

[197] Ibid.

[198] Ibid 61–3.

[199] Kymlicka (n 81) 144 n 56.

[200] Ibid 124–5.

[201] Ibid 125.

[202] Ibid 134–5.

[203] Ibid 125.

[204] Ibid 143.

[205] Ibid.

[206] See Ibid 138, 150. Working animals, by contrast, establish membership rights ‘through relations of collegiality, as co-workers in a shared workplace[.]’

[207] Ibid 135,153–4.

[208] Ibid 144.

[209] Ibid 125–6, 153.He concedes ‘[i]t is far too early to make confident assertions about the efficacy of this strategy, in part because it is largely untested.’

[210] Harvey (n 72) 14.

[211] Ibid.

[212] Mackinnon (n 116) 271. See also Francione, who rules out moral theories which violate ‘the principle of equal consideration — the rule that we ought to treat like cases alike unless there is a good reason not to do so’: Francione (n 72) 121. But see Favre (n 10) 236. Favre states ‘[i]t is a burden of the animal rights movement that so many of its leaders will support only the purest philosophical position, regardless of political feasibility.’

[213] Favre (n 10) 239.

[214] Hennet (n 191).

[215] Per Lynch J in Ibid 547. See also Feger (n 143) 72 in which Leventhal J noted that ‘[r]ecognizing companion animals as a special category of property is consistent with the laws of the State and the underlying policy inherent in these laws to protect the welfare of animals.’ Pets were also referred to as a ‘special category of property’ in Hament (n 60) 463 (Crawford J). In North America, there are lawyers who specialise in the ‘niche area’ of pet custody: Tony Bogdanoski, ‘The Marriage of Family Law and Animal Rights: How Should Australian Family Law Approach the Rise of “Pet Custody” Disputes?’ [2006] AltLawJl 51; (2006) 31(4) Alternative Law Journal 216, 216 (‘The Marriage of Family Law and Animal Rights’).

[216] ‘To the extent that the law is out of sync with our private understanding of companion animals, this is in part due to dissonance in that private understanding itself’: Pallotta (n 9) 35.

[217] Bueckner (n 60) 377–8.

[218] Kymlicka (n 81) 124.

[219] Ibid 136–7. See also Pallotta (n 9) 5–6. ‘The changes in the way society regards dogs and other household pets all but insure that cases involving the type of dispute seen here will only increase in frequency.’: Travis (n 62) 461 (Cooper J).

[220] Pallotta (n 9) 2; Kymlicka (n 81) 141–2.

[221] See Handy (n 8). See also Arcaro (n 60) 25–6; Bennett v Bennett (n 179); Dubin (n 130); Eason (n 62) 94, 100–1; Foxx (n 57) 458, 467, 469–70; Travis (n 62) 458–9.

[222] ‘[F]or much of Western history, the family has been seen as the property of the male head of household: women, children, slaves and animals were all considered in law as property of the paterfamilias. The family was seen as a zone governed by natural hierarchy and biological imperatives, in which the father’s exercise of private power was restrained only by his sense of love and moral duty, not by legal rights.’: Kymlicka (n 81) 143 n 55.

See also Downey (n 41) [11]; Foxx (n 57) 471; Pallotta (n 9) 22; Schyler P Simmons, ‘What Is the Next Step for Companion Pets in the Legal System? The Answer May Lie with the Historical Development of the Legal Rights for Minors’ (2013) 1(1) Texas A&M Law Review 253; Yeates and Savulescu (n 95) 351.

[223] Travis (n 58) 459–60 (Cooper J). See also Foxx (n 54) 471.

[224] Travis (n 62) 460 (Cooper J). See also Arcaro (n 60) 26; Harmina (n 55) [59] (Hoegg JA). Foxx uses the example of Leona Helmsley’s multi-million dollar testamentary gift for her dog ‘Trouble’ to help assert there are ‘individuals [who] would not find the aspect of fighting over a dog comical’: Foxx (n 57) 456–7. See also Yeates and Savulescu (n 95) 351.

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