Many of us consider pets as part of our family. So, it may not be far-fetched that the married couple of 27 years wanted their dogs, Mr. Bear and Kona, to be awarded to one of them as custody with visitation to the other “parent”.
That is exactly what a Washington state court commissioner did. The husband, Douglas was awarded the two dogs and the wife, Mariah, was granted visitation. The Washington State Court of Appeals Division I, overturned the decision to grant Mariah visitation in the published opinion of Douglas Niemi v. Mariah Niemi.
According to the final Dissolution Decree, both Mr. Bear and Kona were awarded to Douglas as his separate property. Mariah was awarded visitation rights as follows:
[Mariah] is awarded the right to visits with both dogs (Mr. Bear and Kona), including removing [the] dogs from [Douglas’] property during the visits. The visits shall involve both dogs at the same time. The exchanges shall occur in the yard of [Douglas] unless otherwise agreed to by the parties. Except in cases of an emergency, [Mariah] shall give [Douglas] a minimum of 48 hours[‘] notice if she cannot attend a scheduled visit.
The visits shall be three times a week for three hours as follows: Wednesdays, Fridays, and Sundays from 5:45 p.m. until 8:45 p.m. If any visits fall on July 4th, Christmas Eve, Christmas Day, New Year’s Eve, or New Year’s Day, [Douglas] shall have the option to set that visit on the Monday following the holiday, but he must provide [Mariah] with a minimum of 30 days[‘] advanced written notice of the schedule change.Final Dissolution Decree of Douglas Niemi v. Mariah Niemi
The Problem? While a trial court has broad discretion to distribute marital property, under RCW 26.09.080, a trial court must dispose of property in a “just and equitable” manner after considering (1) the nature and extent of the community property, (2) the nature and extent of the separate property, (3) the duration of the marriage, and (4) the economic circumstances of each spouse. Also, parties to a dissolution have a right to have their property interests “definitely and finally determined” without the prospect of future litigation.
Ms. Niemi argued common law special circumstances that would create a ‘de facto’ parentage situation. The Court was not persuaded. To the contrary, Washington courts historically and consistently have characterized animals, even family pets, as personal property.
Ms. Niemi also did not dispute that future arguments and litigation would likely arise- which directly conflicts with a trial court’s duty to ‘definitely and finally determine” the distribution of property. Since the parties were already litigating the language in the decree, the door was shut quickly on that argument.
The Court ultimately remanded the case back to the trial court to strike the visitation and maintenance portions of the Final Dissolution Decree.
The bottom line: the Court ruled that pets can’t be awarded to one party like a child in a custody case or parenting plan with visitation to the other party; at least not under the current statutes and case law.