Pets and Family Law: A pet custody battle?

A New Jersey ex-couple may be changing the law in New Jersey regarding pets and custody. The couple have each spent over $20,000 fighting over who will get custody of their pet pug. The couple originally agreed to joint custody, but then one 'parent' decided to refuse the other time when the other 'parent' began dating again. In Pennsylvania pet custody agreements have not been enforced by the courts, but perhaps this case will help shed some new light on an emotionally charged aspect of divorce - who gets the pet?

Audrey Buglione is an attorney in Harrisburg, Pennsylvania where she lives with her three children and her pound puppy, rescue kitty and "Cool Dude" the leopard gecko.

PROTECTING YOUR PET IN THE EVENT OF YOUR DISABILITY OR DEATH

Your pet is a beloved member of the family. During your lifetime a pet provides you with great joy and companionship. In exchange, you provide her with a loving home. However, upon your death or disability your devoted pet may be left “homeless” or in the care of a well-meaning relative who has little time or resources. To avoid this, more and more pet-parents are choosing to include provisions for their pet's care as part of their will. In 2006, Pennsylvania became the 32nd state to adopt a Pet Trust statute providing the legal right to establish a Pet Trust for the continuing care of an animal.

A Pet Trust can be designated to take effect upon your death or upon a disability that prevents you from caring for your pet. The trust is funded by you (the grantor) with sufficient funds or property to care for your pet or pets during the expected lifetime of the pet(s). You will designate a caretaker as well as a trustee who is responsible for supervising the use of the trust funds and for providing regular payments from the trust to the pet's chosen caretaker. The trustee could also approve and pay for the pet's miscellaneous expenses as they arise.

As with any legal document it is important that a pet trust is as specific as possible. To avoid confusion and misunderstanding you should carefully consider the following:

* Who will you designate as the trustee? And, who will act as the alternate trustee in the event the first trustee is incapable or unable to serve?

* Who will you name as the caretaker and alternate caretaker?

* Do you have a detailed method of identifying your pet (i.e. microchip, DNA)?

* What are your pets habits and needs?

* What type of food does your pet like and when is she fed?

* What is your pet's exercise and play routine?

* Who is your pet's veterinarian and where are the records?

* Are there any chronic health conditions and how would you prefer to handle new health issues as they arise?

* How will the trustee ensure and oversee the proper care of your pet?

* What type of property will fund the trust?

* What will happen to the trust property after the death of your pet?

* How would you like your pet's final remains handled?


A Pet Trust gives you the peace of mind knowing that your friend will live out her days with the same level of care that you had provided during your lifetime. However, like any other estate planning document, a Pet Trust must be carefully drafted or a court may deem it unenforceable. It is important to contact an experienced local trust and estate planning attorney to discuss the appropriate way to plan for a continuing comfortable life for your pet.

Audrey Buglione is an attorney in Harrisburg, Pennsylvania where she lives with her three children and her pound puppy, rescue kitty and "Cool Dude" the leopard gecko. Audrey handles a variety of animal law issues.

Dogs Gain a Little More Protection in Wisconsin

This Wisconsin case shows the court's growing willingness to take a look at animals in a new light. In this case, the court determined that it is a "violation of the Fourth Amendment for a police officer to shoot and kill a companion dog that poses no imminent danger while the dog’s owner is present and trying to assert custody over her pet." The following is a summary of the case from animallaw.info

Viilo v. Eyre
United States
--- F.3d ----, 2008 WL 4694917 (C.A.7 (Wis.))

Summary:

Virginia Viilo sued the City of Milwaukee and two of its police officers under 42 U.S.C. § 1983 after an officer shot and killed her dog 'Bubba.' The district court denied the defendants' motion for summary judgment on the basis of qualified immunity and the defendants took an interlocutory appeal challenging this denial. The court found that defendants' interjection of factual disputes deprived the court of jurisdiction. Testimony indicated that there were disputes as to whether the dog was actually menacing toward the officers; in fact, witnesses indicated that an officer followed the whimpering dog after it had been initially shot to shoot it again with a shotgun. The court, in aligning itself with other circuits, held that it is a violation of the Fourth Amendment for a police officer to shoot and kill a companion dog that poses no imminent danger while the dog’s owner is present and trying to assert custody over her pet. Moreover, a reasonable officer would or should have known that the actions alleged here would violate the Constitution. The interlocutory appeal was thus dismissed.

Go to animallaw.info to read the opinion.

Finding Fridaydog....Beware the Scam Artists

To many a pet is a full-fledged member of the family. And losing that pet is devastating. But, despite our most careful attention, at times our beloved pets do get lost. So what do you do?

Let me tell you a story...

Many years ago I was the proud "parent" of a lovable, goofy, wandering black Labrador Retriever named Friday and affectionately called Fridaydog and Furface (occasionally we referred to him as The Farter - but that's another story). One night, Fridaydog roamed off when I wasn't looking. We called his name, searched the neighborhood and drove around in vain trying to find him. That night a storm broke out so we assumed he had taken shelter and would surely return home in the morning. We were wrong. He didn't.

We did all the things that one should do when trying to find a lost pet:

1. Made flyers with his picture and posted them around the neighborhood.
2. Offered a Reward for return of our dog.
   
3. Placed ads in the local papers.
4. Called every humane society, SPCA and rescue shelter (repeatedly).
   
5. Wrote to every veterinarian, pet shop, groomer and kennel in the area and included a copy of the flyer.
   
6. Pounded the streets putting flyers on cars and handing them to local business owners.
7. Talked to the local police force and crossing guards.
   
8. Made friends with neighbors who had similar looking dogs asking (begging) for their help.

Today, we could have used the internet to post lost pet ads such as:

• Petfinder.com
• Pets911
• LostPetSOS
  
• DogDetective

The outpouring of help and genuine concern was incredible. Everyone we met was very supportive... except for two people. Enter the scam artists. These people prey on your emotional attachment to your pet to get money out of you.

The first scammer was a seemingly kind elderly gentlemen who claimed to have seen Friday with a few local boys. He said the boys had the dog on a rope and he just knew the dog wasn't theirs. (Interestingly, a trusted neighbor with a dog similar to Friday had just told us that she'd seen some local boys with a black Lab on a rope. She called to them to see their dog and they took off running). I asked the man where the boys lived, but he wouldn't tell me. Instead, he said that the boys wouldn't trust me or that they would want more of a reward from me than they'd expect from him. He convinced me to meet him at a local gas station to give him the meager reward ($25.00) and he promised to take the money to the boys and return with Fridaydog. I didn't trust him, but I felt that I had no choice. I wanted my dog back. I was a college student on a very limited budget, and back then $25 was a small fortune. My boyfriend and I met the elderly man and a friend of ours parked in the next parking lot. When the man drove off our friend followed him. Eventually the man stopped at a house, got out of the car, and went up to the door. No one was home. He got back in the car, turned it around in the driveway, and drove to the end of the driveway. Then the man got out of the car and dug through the trash. (Our friend who had pulled into the neighbor's driveway watched the whole thing). The man waited until a bus came along and then suddenly pulled out in front of it and took off. Our friend lost him. The man never came back.

Our second villain pretend to be a truck driver who had gone through our town a few weeks ago (around the time we had first lost Friday). The truck driver claimed that he had bought a dog from some kids who'd had him on a rope. (Again, the rope connection). He had planned on giving the dog to his fiance, but she didn't want him. He realized the dog was well trained and probably hadn't belonged to those boys. So, as a good Samaritan, he was searching for the owners of the dog. He'd seen our ad in the paper and wondered if the dog he had could be our beloved Fridaydog. He asked me to identify the dog. We went back and forth on whether the dog was mine. Several times he would hang up to check the identifying characteristics (he said he was at a pay phone and the dog was in the truck). At one point, I said that my dog had a few white hairs on his back left paw (he didn't). The man called back and said, "Yes, ma'am, a few white hairs." Even though I knew Friday didn't have any white hairs, I still wanted the dog with that man to be my dog. It had been weeks since I'd seen him and this was the best lead I'd had to date. The man refused to put someone else on the phone to verify that he even had a dog with him. Despite my nagging doubt, I convinced myself that in the weeks that Friday had been missing he must have gotten slightly injured and the hairs grew back in white. I was desperate to have my dog home.

Well, eventually we were discussing ways to get the dog back to me. (The truck driver was a few hours away from me). I suggested that he drop the dog off at the local shelter until I was able to get there. He hung up and called me back after talking with the shelter. "No, ma'am, that won't work. They won't let the dog stay for just a few hours." Next, I suggested that I drive out to him, but he said he couldn't wait that long, that he had to get back on the road. Someone, and I don't remember whom, suggested that he airmail the dog to me. The man called the airline and sure enough there was a flight going out soon and the dog could go. I offered to send him the money for the flight as soon as the dog arrived. But, he wouldn't have any of that. He didn't trust me.

We seemed to be at an impasse until I suggested (or maybe he did) that I Western Union the money to him. The flight was $349 plus a carrier at $50. I agreed. I asked him which Western Union he was nearest (hoping I could contact the local police and have them show up to nab him if he was a scammer). He told me it didn't matter, because he could go to any one and get the money. He just needed confirmation that I'd sent the money and he'd take the dog to the airport. I asked him his name and he gave it to me, but then told me that I should use a code name in order for him to pick up the money because he'd lost his license. I was to tell the Western Union people that the code was "Brother's Name" and the answer was "Bill."

I got all the way to the Western Union, with all of my rent money for the month and then some. It cost an additional $25 to send the money, but I didn't have it. My roommate offered to lend it to me. I stood there in front of the Western Union, crying, doubting and not knowing what to do, I just wanted my dog and I felt that if I didn't send the money I would never know. Ultimately, with a heavy heart, I walked away.

A few weeks later, a lead that we'd been following led us to Friday. He'd been picked up the night he went missing. Friday had been hanging out with the local flower seller, sharing a hoagie, when a patron (the man in the red van) came by to purchase flowers for his wife. The patron asked if the dog belonged to the flower guy. When he was told no, the patron offered to take the dog home and split a reward if anyone was looking for the dog. Instead, he took the dog home and presented him to his family of six children as their shining angel from heaven who'd come to look over them in their move to the new town. They named him Gabriel and never intended to return him. The flower guy had told us that the man in the red van had come by every Saturday to buy flowers until the night he took Friday. Then, he came no more. It wasn't until New Year's Eve, nearly three months later, that the man in the red van returned to buy flowers. The flower guy demanded that he return my dog to me. (He'd kept my number in his wallet, beside the quarter that I'd given him to use the pay phone in the event the man in the red van returned.) The blessed flower guy left his stand that New Year's Eve and walked the two blocks to my house to tell me that Friday would be coming home that night.

The man with the red van did bring Friday home to us that night, along with each of his six kids, with Friday drapped in ribbons and bows. It was a bittersweet homecoming. I was overjoyed to have my dog back, and Fridaydog whined and barked with happiness at seeing me; but the six young children were devastated that they had to give up their "Gabriel." The man with the red van did that to his children by giving them something that was never theirs; but nevertheless, I felt sad because I understood their pain.

Two months later a man posing as a truck driver called us and said he might have found our dog. He'd bought it from some boys who'd had the dog on a rope...

I called ever single person who had a lost dog ad in the paper and warned them of the scammer. One person had actually sent him the money. Dogs are man's best friend. Beware of those who will try to benefit from your grief over losing your pet.

One last word...Get your pet microchipped. If he does end up at the veterinarian or shelter, he can be easily recognized. Always have a collar on your dog, with identity tags. I didn't have either. I was extremely lucky to get Friday back.

Audrey Buglione is an attorney and single mom who lives in Harrisburg, Pennsylvania with her three children. She practices family law, education law and animal law. Her office is located in Dauphin County. She assists clients in Dauphin, Cumberland, Lancaster, York, Perry, and Lebanon counties. Contact Audrey Buglione for a no-obligation confidential consultation.

Buying a Dog? Do You Know Your Rights Under the Puppy Lemon Law?

This Pennsylvania statute comprises the state's Dog Purchaser Protection law (otherwise known as the Puppy Lemon Law). The law mandates disclosure of a dog's health history by a seller (defined as pet shop operator or other individual who sells dogs to the public and who owns or operates a kennel or pet shop licensed by the Pennsylvania Department of Agriculture or the United States Department of Agriculture). If, within ten days after the date of purchase, a dog purchased from a seller is determined, through physical examination, diagnostic tests or necropsy by a veterinarian, to be clinically ill or dies from any contagious or infectious illness or any parasitic illness which renders it unfit for purchase or results in its death, the purchaser may exercise one of the described statutory elections.

This seems like a wonderful thing right? Now you can go out a buy Fido without worry. Wrong. Let's say you buy Fido from your local licensed dog seller and the next day Fido wakes up sick as a dog. (Pun intended.) You've come to love the little guy in the 24 hours you've owned him so of course you race him to the vet. The vet is a hero and saves Fido from whatever bizarre illness that seemingly struck the poor pup just days after buying him. The vet hands you a bill for $1,500. Now what? Ahh, Puppy Lemon Law, you think. The seller will have to pay the bill, right? Not necessarily. First, let's see if you fall into the group that is protected by the law.

1) Did you buy the dog from a source defined as a seller under the law?

"Seller" means a kennel, pet shop operator or other individual who sells dogs to the public and who owns or operates a kennel or pet shop licensed by the Pennsylvania Department of Agriculture or the United States Department of Agriculture. The term shall not include nonprofit kennels as defined under the act of December 7, 1982 (P.L. 784, No. 225), [FN3] known as the "Dog Law."

2) Was the dog unfit for purchase as defined by the law?

"Unfit for purchase" means any disease, deformity, injury, physical condition, illness or any defect which is congenital or hereditary and which severely affects the health of the animal or which was manifest, capable of diagnosis or likely to have been contracted on or before the sale and delivery of the animal to the consumer.

Assuming these requirements are met within the proper time frame, and verified as required, by a veterinarian, you may be entitled to exercise your rights to a remedy under the law. Here are your options...

(1) Return the dog to the seller for a complete refund of the purchase price, not including the sales tax.

(2) Return the dog to the seller for a replacement dog of equal value of the purchaser's choice, providing a replacement dog is available.

(3) Retain the dog and be entitled to receive reimbursement from the seller for reasonable veterinary fees incurred in curing or attempting to cure the affected dog, subject to the limitation that the seller's liability for reimbursement shall not exceed the purchase price, not including sales tax, of the dog. This clause shall apply only if the purchaser's veterinarian determines the dog's illness can be treated and corrected by procedures that are appropriate and customary. The value of these services is considered reasonable if comparable to the value of similar services rendered by other licensed veterinarians in reasonable proximity to the treating veterinarian. Reimbursement shall not include the costs of the initial veterinary examination fee and diagnostic or treatment fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section. If, however, the purchaser's veterinarian determines the dog's illness is incurable, only the options in clauses (1) and (2) of this subsection shall apply.

So, in the above hypothetical, if Fido was purchased for $350, and you don't want to return Fido (imagine where Fido will end up...) you may be entitled to reimbursement of the $350 (plus tax) but not for the entire $1500 vet bill. Puppies are adorable creatures and tug at our heart strings. But I urge you not to fall victim to impulse buying. Many of those adorable puppies that you see in the windows of pet shop come from puppy mills. If you decide to bring a dog into your family, do your research and either go to a reputable breeder that stands behind the health of their puppies or better yet, visit your local humane society or rescue center such as the Humane Society of Harrisburg Area and give a dog who's been abandoned a forever home.

Concept that pets and livestock have rights, as humans do, gaining ground

msncb.com
February 15, 2009

PORTLAND, Ore. - Some things shouldn't happen even to a dog. But they do.

In Pennsylvania last year, a warden ordered two kennel operators to examine some of their charges for fleas. Instead, Elmer Zimmerman of Kutztown shot 70 dogs; his brother Ammon, who had a kennel next door, shot 10.

Horrible, yes, said Jessie Smith, the state's special deputy secretary for dog law enforcement, when the killings were reported. "But it's legal."
Story continues below ↓advertisement | your ad here

No more. Partly because of outrage over the shootings, dogs in Pennsylvania kennels now can be euthanized only by a veterinarian, and the state keeps a tighter leash on the "puppy mills."

For the rest of the article regarding animal law and rights.

The Elephants Day in Court - ESA used to battle inhumane treatment by Circus.

A few months ago I read the book, Water for Elephants,by Sara Gruen, and fell deeply in love with Rosie the Elephant who was horribly abused by her trainer's use of chains and bullhooks. Well, now it seems Rosie (or at the very least, her real life counterparts) will get their day in court. Today begins the first day of a trial for a lawsuit brought by a coalition of animal welfare groups intent on seeing that animal cruelty to the circus elephant stops. The animal welfare groups include the American Society for the Prevention of Cruelty to Animals,the Animal Welfare Institute and the Fund for Animals.
Elephants have long been a major attraction at the circus. Some people are willing to believe that the circus elephant is obedient because it is so intelligent and willing to please. But according to the animal welfare groups, elephant compliance isn't being brought about by treats and loving training, but rather through abusive measures such as "hitting elephants with bull hooks and keeping them in chains." A bullhooklooks like a fireplace poker with a sharp steel hook at the end. According to a New York Times articlethe animal welfare groups are not seeking to eliminate elephants from the circus, but "simply want the elephants to be treated humanely and in accordance with the law.” Ringling contends that the animals are being treated humanely, but I don't think the elephants captured in footage by PETA would agree.
What is interesting about this latest attempt to help the circus animals is that a large part of the welfare group's case is based on the Endangered Species Act and less so on the Animal Welfare Act. Ringling Brothers contends that the ESA does not apply to captive animals. Ringling is coming to the Harrisburg area in May with performances throughout May at the Giant Center in Hershey, Pennsylvania. Think about the suffering the animals must endure in order to entertain you and your children and consider helping the welfare groups send a message to Ringling and other circus by refusing to go.
I am eagerly awaiting a verdict. Let the Elephants prevail against animal cruelty!