A decade ago, the idea that a divorce would involve "custody" of a pet, much less that the decision would factor in the pet's own predilections, would have been dismissed by most lawyers as absurd. Pets were property, and not very valuable property at that, to be balanced against all of the other stuff that is split up in a divorce - nobody, after all, talks about joint custody of an armoire.
But recent years have seen an intensifying effort on the part of animal rights activists, legislators, prosecutors, and legal scholars to change the way the law treats animals.
The result has been the beginning of a qualitative shift - not merely the stiffening of animal cruelty laws, though in most states that has happened, but changes that are turning animals into legal beings with their own interests, and, in a few cases, their own enforceable preferences. Thirty-nine states and the District of Columbia now allow pet owners to endow pet trusts, the kind of legislation that made it possible for New York hotel billionaire Leona Helmsley to bequeath $12 million to her dog, Trouble. In some states, veterinarians are now required to report suspicions of animal abuse in the same way pediatricians have to report child abuse. Courts are starting to take seriously the claim that pet owners are entitled to compensation for pain and suffering in cases involving the death of an animal. And, in a Tennessee case this spring, a court appointed a legal guardian to represent the interests of a dog in a custody dispute.
These new laws and decisions have the potential to redefine the age-old legal boundary between people and their property. "For literally thousands of years animals have been part of personal property," says David Favre, a law professor and animal law specialist at Michigan State University, "but in the past five years we're seeing courts take a broader view that animals are not like televisions and computers, that our relationship with them is more complex than that."
At the same time, the field of animal law is growing. Nearly half of the 190 accredited law schools in the United States now offer animal law courses, up from a handful 10 years ago, and around 100 now have chapters of the Student Animal Legal Defense Fund. A rising number of lawyers are dedicating themselves, in whole or in part, to the practice, and the American Bar Association and 13 state bar associations now have animal law committees.
For the most part, the lawyers arguing these new sorts of cases avoid the language of animal rights. In the eyes of the law, only people have rights, and even many animal lawyers are unwilling to dissolve the boundary between animal and person. Instead, many argue that animals should be something intermediate, a form of sentient property.
Still, a few animal lawyers see the evolution in the law paving the way to a more fundamental rethinking of the legal status of what they call, to emphasize our own connection to the animal world, "nonhuman animals."
Steven Wise, a Boston-based animal rights lawyer and a leading animal rights theorist, shares that view. "The idea that nonhuman animals are worthy of anything - that they have some value that's worthy of fighting about in court - that will lay the foundation for litigation that would actually lead to nonhuman animals getting some sort of equal rights," he says...
Read the rest of this tragicomic article from the Boston Globe right here.