Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals

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Worth the Cost? Virginia’s Proposed Abuser Registries

You run a Virginia rescue, and are diligent in complying with the statutory requirement to provide signed statements from each of your directors, operators, staff, animal caregivers and fosters verifying they have never been convicted of animal cruelty, neglect or abandonment. It then comes to light that one of your staff actually has an animal cruelty conviction that you didn’t know about. You also find out that one of your directors was convicted of neglect after she signed her statement.

Although officials may understand your position in relying on the written statements, the law does provide for a civil penalty of up to $250 for noncompliance. This goes for the staff member’s animal cruelty conviction and the director’s neglect conviction, because the law makes it clear that it is your duty to update the statements if anything changes. The law imposes the same duty to obtain these statements for Virginia pounds and shelters.

Short of employing a company to do expensive background checks, or going to each courthouse to comb through criminal records, how are pounds, shelters and rescues supposed to check on the accuracy of these statements? One solution would be the creation of an animal abuser registry. In fact, Delegate Daniel W. Marshall, III from Danville introduced two bills earlier this year that would establish registries – much like Virginia’s current sex offender registry – for animal abusers and domestic abusers.

The animal abuser bill would require adults convicted of felony animal cruelty or animal fighting to register in person with the sheriff of the county or city where they live, and to re-register annually. The sheriff would have to notify every residence and business within a ½ mile radius of the abuser’s residence within ten days of the initial registration. The abuser’s information would also be kept in a central registry with the State Police, and posted publicly on the State Police website.

The animal abuser and domestic abuser bills were sent to the Committee for Courts of Justice in January. Yesterday, the Virginia State Crime Commission heard evidence that the cost of setting up both abuser registries would be $1 million, with further operating costs in the millions of dollars. The Virginia State Crime Commission is expected to vote on the proposals for these registries later this year, and the General Assembly could vote on the bills as early as the 2012 legislative session.

As a former public defender who struggled with the implications of sex offender registration on my clients, I have to give some credence to people like Wayne Pacelle of HSUS who have reservations about registries such as these. But I do think that well crafted registries can serve a function. This is particularly so with animal abuse registries, when jurisdictions like Virginia impose duties on rescues, pounds and shelters to report and update personnel information. Registries would also help to track puppy mills, dog fighting rings and animal hoarders.

Unfortunately, Virginia’s proposed animal abuser registry would track only Virginia residents, and only felony cruelty and animal fighting convictions. The first jurisdiction to pass legislation creating an animal abuser registry was Suffolk County, New York last year. I applaud efforts to be tough on animal abusers. But registries are being created in a piecemeal way, locality by locality or state by state.  Although free and easy to access, it would be incredibly time-consuming to check each one of these registries.  A much more practical solution is to have a nationwide registry that could track felony and misdemeanor cruelty, neglect and abuse convictions – a cause that some have already voluntarily taken up.

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Major Steps Forward: Maryland Passes Several Animal Rights Bills

The Maryland General Assembly just finished its session this week, taking major steps forward with several animal rights bills.

  • HB 227/SB 115 authorizes a court to prohibit a defendant from owning, possessing or residing with an animal as a condition of probation for specific violations concerning animal abuse, neglect or cruelty.  [By comparison, Virginia Code Section 3.2-6570 allows a court to prohibit a person convicted of animal cruelty from owning or possessing a companion animal.  Virginia Code Section 3.2-6571 requires a court to prohibit a person convicted of dog or cock fighting from owning or possessing companion animals or cocks.  Unfortunately, Virginia’s version of neglect (lack of adequate care, found in Virginia Code Section 3.2-6503) does not authorize a court to prohibit possession of companion animals.]
  • SB 639/HB 339 establishes a task force for a statewide spay/neuter fund.  The bill specifies the task force’s membership, chair and staff; requires the task force to review spay/neuter programs, collect and review data, and make recommendations for a spay/neuter fund; and requires the task force to report its findings and recommendations to the Governor and specified committees in the General Assembly on or before January 1, 2012.
  • SB 839/HB 940 requires a kennel license for persons who own or have custody of fifteen or more female dogs kept for the purpose of breeding and who sell dogs from six or more litters a year; requires each county to collect and maintain specified information related to each kennel license; and requires each county to report specified information to the Department of Labor, Licensing and Regulation on or before January 15 of each year.  [Virginia already has a similar statute for breeders found in Virginia Code Sections 3.2-6507.1 through 3.2-6507.6, but it only applies to breeders with thirty or more adult female dogs.]
  • HB 407/SB 747 authorizes District Court Commissioners in interim protective orders, and judges in temporary and final protective orders, to award temporary possession of any companion animal of a petitioner or respondent in a protective order proceeding.  [A similar bill failed in Virginia’s General Assembly this year.]
  • HB 897 will require antifreeze to contain a bittering agent (denatonium benzoate), effective January 1, 2012.  [The American Veterinarian Medical Association has more information about which states already require a bittering agent in antifreeze.  Fortunately, Virginia is among those states, with Code Section 59.1-155.1 requiring the bittering agent in antifreeze and engine coolants as of January 1, 2011.]
  • HB 941 authorizes restaurants with outdoor dining areas to allow dogs in the outdoor dining area during specified hours.  This bill will allow restaurant owners to limit the size and type of dogs allowed, and will require the owners to post notices.  [For a comparison of how Virginia handles outdoor doggie dining, take a look at this post from the Northern Virginia Dog Blog.]

A couple of other bills were not so lucky.

  • SB 814/HB 770 would have allowed courts to grant decrees in divorce proceedings regarding ownership of a companion animal, and would have prohibited courts from ordering either party to order payment to maintain the companion animal under certain circumstances.  [Virginia’s General Assembly has stayed out of this area so far, leaving the Virginia courts to continue to consider and “dispose of” companion animals as property in divorce proceedings.]
  • HB 912 would have required retail pet stores to post specific information about each dog on each dog’s cage, maintain written records about each dog for one year after the date of sale of the dog.  [Virginia has similar “pet shop” laws, including specific Consumer Protection Act violations, found in Virginia Code Sections 3.2-6512 to 3.2-6516.]
  • HB 294 would have prohibited infliction of unnecessary suffering or pain on an animal through the use of a rifle, a handgun, or a specified weapon.  [To the contrary, the Virginia General Assembly focused much of its energy on pro-hunting legislation this session.]
  • HB 301 would have authorized the Department of Natural Resources to suspend hunting licenses or privileges of persons convicted of state or federal hunting violations, and would have required a minimum one-year suspension of hunting licenses or privileges for subsequent hunting violation convictions.

Kudos to Maryland for accomplishing so much for animals this session!  This was a much more productive session for animal rights than in Virginia.  If you’d like to know more about how Virginia fared this session (I’ll warn you that it’s pretty dismal), take a look at my post from earlier this year.

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Who Gets The Dog? Whitmore v. Whitmore

Scott and Barbara Whitmore got married in 2002.  They had no children, but they did adopt a Welsh Corgi puppy from a local pet store in 2006.  They paid $750 for the Corgi, Noel, and registered her with the American Kennel Club under both of their names.  Scott and Barbara both worked, and both contributed to Noel’s care, training and maintenance. 

In 2009, the Whitmores separated.  The house they had lived in was Barbara’s property prior to the marriage.  Barbara stayed in the house, and Scott moved out.  Noel stayed with Barbara for the most part, with Scott taking her on and off during the first year of separation.  Barbara believed the dog would stay with her ultimately, but Scott thought Noel would stay with Barbara during the separation, and that they would share Noel afterwards.

Barbara worked from home, but traveled for work four to six days a month.  When she was out of town, she employed a pet care service for $350 or so a month to take care of Noel.  Barbara no longer wanted to share Noel with Scott, claiming he destroyed the marriage by having an affair, and that she no longer wanted Scott in her life.

During the divorce proceedings in Loudoun County Circuit Court, Barbara argued that Scott gave her Noel as a gift.  Scott testified that he saw Noel at the pet store, and they went together to buy the dog, making the transaction a “joint purchase.”  Both Scott and Barbara testified that they loved Noel, considered her to be a family member, and shared a strong bond with her.

Barbara claimed she usually took Noel to the veterinarian, and that she visited Noel several times a day when Noel was hospitalized for five days.  Scott said he did not visit Noel when she was hospitalized, for fear of getting Noel excited while she was ill.  Barbara claimed that she paid Noel’s that $4,000 vet bill, and most of Noel’s other vet bills, except when Scott took her to the vet once or twice.  Scott testified that he paid the $4,000 bill.

Barbara argued she should be able to keep Noel.  Scott argued that he should have Noel, or that the court should award shared possession and establish a visitation schedule.  Judge Horne ruled that Virginia Code Section 20-107.3, which deals with equitable distribution of property, governed the case.  Judge Horne found that both Scott and Barbara contributed to Noel’s purchase and maintenance, and both played a significant role in Noel’s life.  But Noel stayed with Barbara, and Judge Horne felt it was “ill-advised” to set up visitation or shared custody of a “marital asset.”  Judge Horne awarded Noel to Barbara, and awarded $750 to Scott so that he could get a dog “of like kind.”

Scott appealed to the Court of Appeals, arguing that Judge Horne failed to consider and weigh all of the necessary factors – such his monetary and nonmonetary contributions in getting and maintaining Noel, and that Noel is a living , sentient being rather than an inanimate possession.

The Court of Appeals summarily affirmed the trial court in a recent unpublished opinion, agreeing that Section 20-107.3 governed.  Under that section, the court has to first determine property is marital, separate, or a hybrid.  Next, the court has to value the property.  Last, the court has to distribute the property equitably. 

The Court of Appeals had no problems with Judge Horn’s application of Section 20-107.3.  Regarding the inquiry of whether Noel should be considered marital or separate property, or a hybrid, the judges agreed with Judge Horne’s conclusion that Noel was “marital property,” based on the facts that Noel was a gift “between the parties,” was registered with the AKC in both of their names, and that both Scott and Barbara played significant roles in Noel’s life. 

Regarding valuation, the judges concluded that Judge Horne considered the necessary factors and the unique circumstances of this case.  On the record, Judge Horne struggled with placing a value on Noel, finding that Noel had a unique “intrinsic value,” and did not “in any way want to minimize the significance of a pet in a person’s life.” 

Regarding distribution, the judges found no abuse of discretion in awarding Noel to Barbara and $750 to Scott.  The Court of Appeals found no error in refusing to set up joint custody or a visitation schedule for a pet.  In fact, the judges went out of their way to cite Virginia Code Section 3.2-6585 in a footnote, to support their position that does are “personal property” under Virginia law.

Linguistically and legally, the Court of Appeals’ decision is an interesting read.  The judges go to great lengths in their delivery and vocabulary to make it clear that Noel is nothing more than property.  They refer to Noel as “the dog” throughout the entire opinion, never even using her name or even her gender.  Instead of saying the Whitmores adopted Noel, they use the word “acquired.”  Instead of saying Scott had custody of her during the separation, they say he had “possession” of her.

This isn’t the first time the Court of Appeals of Virginia was faced with a fight over who gets the dog in a divorce.  In the 2004 unpublished opinion of Conahan-Baltzelle v. Baltzelle, the Court of Appeals upheld a trial court’s application of Section 20-107.3 and decision to award the husband possession of the couple’s German Shepherd.

Obviously, Virginia is nowhere near other states like Maryland in its readiness to give companion animals a better legal position than mere property.  At least one Maryland trial court has granted shared custody of the family dog, treating the dog more like a child by weighing the best interests of the dog.  A civil case pending in Frederick County Circuit Court involving deputies shooting a family dog may give us further guidance on the legal status of companion animals in Maryland.

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Pets, Personal Property And Price, Part 1: Is Fido A Pampered Pooch Or Mere Personal Property?

According to the law, pets are personal property.  For instance, Virginia Code Section 3.2-6585 says that “all dogs and cats” are “deemed personal property.”  Many people find this unacceptable, and want companion animals to have a much more meaningful legal status.  As unsatisfactory as the law may seem, defining pets as personal property isn’t all bad.  And the law has added many features for pets that elevate them above mere personal property.

There are many examples of cases that show that pets, although “personal property,” have a legal status all their own.  Two vivid examples of very different approaches to how the law treats pets can be found in Maryland and Florida.

In Calvert County, Maryland, Judge Graydon S. McKee III was confronted with two spouses in a divorce arguing over who should be able to keep Lucky, a beloved Lhasa apso – ShihTzu mix.  Judge McKee held a hearing, where the husband and wife each argued who looked after Lucky, and who had more time to spend with her.  The hearing revolved around Lucky’s and the owners’ best interests – much like a custody dispute and much unlike property division.  In the end, Judge McKee ordered Lucky to spend six months at a time with each spouse.  To read more about this, take a look at this Baltimore Sun article, Split Custody of Dog Recognizes Changing Role of Family Pets.

In Pinellas County, Florida, Judge Henry J. Andringa was faced with a “custody” battle between Florida and Louisiana residents.  The Florida residents had adopted a Saint Bernard and a German Shepherd mix from the Pinellas Humane Society, which rescued the dogs after Hurricane Katrina.  After the original owners in Louisiana got back on their feet, they sued to regain ownership of the dogs.  Judge Andringa decided that he will rule based on straight property law and ownership, and not by conducting an analysis of who will be better caretakers for the dogs.  For more on this story, read this North Country Gazette article, Judge Rules Dog Personal Property in Katrina Custody Case.  These two Katrina dogs are not the only ones involved in a “custody” battle.  A recent thought provoking documentary, “Mine,” discusses the many former owners trying to be reunited with their pets after Hurricane Katrina.

This raises important points for rescues, shelters and pet owners.  First, in the wake of Hurricane Katrina and other natural disasters, there has been a well needed focus on pets in emergency preparedness plans.  Make sure that you have thought this through and are ready to care for your pet in the event of an emergency.  As an example, take a look at the City of Alexandria’s Pet Emergency Preparedness Plan.  Second, if you are a rescue or shelter taking in animals, be sure to get paperwork making it very clear that owners surrendering dogs are relinquishing any rights to the animals, including property rights.  While it may feel unnecessary in the wake of an emergency as horrific as Hurricane Katrina, the absence of such paperwork can create emotional roller coasters like the Pinellas County Florida case after the fact.

So if the law considers pets to be personal property, how much is Fido really worth?  For answers to that question, stay posted for Parts 2 and 3 of Pets, Personal Property and Price.

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