How Much Is That Doggie In The Living-room Window?

courtesy of Sally Anderson Bruce

—By Debra Vey Voda-Hamilton, Esq.- Mediator

www.hamiltonlawandmediaton.com

A recent court decision in New York, Travis v. Murray, recognized the human animal bond in a more tangible way than ever before.  While reviewing a conflict over a pet in a divorce proceeding it discussed the value of that pet to the divorcing spouses.

In Travis v. Murray, Judge Matthew Cooper found that the argument before the court, involving two spouses battling over a dog they once possessed and raised together, couldn’t be held, “to a strict

property analysis.” Judge Cooper did not find that the family pet was a human being, “but [it]is decidedly more than a piece of property marital or otherwise.”  Judge Cooper stopped short of giving the pet a higher status than the family Escalade or Ferrari.

Shannon Travis and Trisha Murray were a married couple that acquired Joey, a miniature dachshund, in happier times and before they were married. It is clear that the married couple, embroiled in this litigation, felt Joey was very important to them for different reasons.  If you are a married or unmarried couple with pets you may want to read the decision. Judge Cooper wrote a lovely 17-page decision you can view at:   http://www.courts.state.ny.us/reporter/3dseries/2013/2013_23405.htm

In Travis v. Murray, Judge Cooper talked about how one-time “happy spouses” who are now divorcing ask the courts, “to decide what happens to the pet that each of the parties still loves and each of them still want,” in their lives.  He did a masterful job recognizing the emotions involved in this case.  He also spoke of limitations placed upon the court when asked to make decisions of this kind by the litigants.

Judge Cooper, recognizing the dilemma he and the ex’s found themselves in, ordered a hearing on the topic of, “who gets the dog?’”  He then limited the plaintiff and respondent’s use of this court ordered hearing to deciding the issue of sole custody.  The court would entertain no joint custody or visitation agreements.  He also refrained from using the best interest standard; rather he ordered the use of the Raymond v. Lachmann standard (264 AD2d 340 [1^st Dept 1999]) of, “best for all concerned.” 

Having a divorce court order a hearing on, “who gets the dog,” was a groundbreaking decision. It

was also a heartbreaking decision, because in the hearing one ex-spouse loses all ownership rights to their beloved pet.  It makes clear the position of most courts in the land.  Though the family pet is no longer a chair, the court is not ready to support a non-property shared custody or visitation agreement for an animal.  Although the court recognized both exes’ loved and felt responsible for the pet as a family member, it rejected joint custody.  It required the complainants to decide who would get sole possession of the animal, just as they do for a chair, car or painting.

In Travis v. Murray, sole custody was given to Murray even before the hearing was conducted.  No additional agreements were entered into that would keep all parties abreast of the dog’s welfare.  The non-custodial Travis does not, at this time, have the opportunity to see Joey, offer to help with

medical expenses or take over the care of Joey if needed.  Neither the court nor the divorce attorneys thought about putting a mechanism in place to alert the alternate pet parent if the possessing parent or pet fall on hard times and re-homing is needed.  These and other nightmares have been the experiences of pet owning ex-partners.

If you are currently in a relationship with a pet there are 4 easy steps you can take to assure you are ready for the care of your pet short and long-term post relationship. 

The 4 steps are easy to remember:  PETS

P - Pre/Post Pet acquisition agreement.

         People draw up agreements when money or property are involved.  Why not create a similar agreement when a beloved pet is at the crux of the conflict. You can include a visitation schedule, a right of first refusal if one party can no longer care for the pet and a stipulation for shared health information.

E – Engage in the pet conversation immediately upon acquiring the pet.  This is key. It will be in everyone’s best interest, especially the pets.

T – Take your time addressing the future custody of your pet. Make sure you consider everyone’s time, cost and availability to care for the pet. 

S - Solve for what is best for all concerned.

Put follow up mechanisms in place that will enable the parties to truly act in the, “best for all concerned.”

For the pets in your relationship, follow these 4 Easy Steps – PETS.  They provide for the pet’s future security and the people’s future peace of mind.

(CR) HLM – AIAACR  All Rights Reserved 2014

Peacemaking in the Dog Wars

By Debra Vey Voda-Hamilton, Esq/Mediator

Hamilton Law and Mediaton

Last week Judge Mathew Cooper, in the case Travis v. Murray, handed down a landmark divorce decision in NY. http://www.courts.state.ny.us/reporter/3dseries/2013/2013_23405.htm

Judge Cooper found a household pet, a miniature dachshund named Joey, is “decidedly more than a piece of property” thus “a strict property analysis is neither desirable nor appropriate.”  If a hearing can be held on “who gets the Escalade or the Ferrari” it should also be available to decide who gets the dog.

While granting a hearing on this subject Judge Cooper’s commentary provided a clear historical examination of decisions being made all over the country dealing with divorce and the pet.  The one constant in these decisions was, pets should not be held as simple property subject to replevin.  They have sentimental value far beyond a lamp or chair.  However, Judge Cooper clearly stated his granting of a hearing did not give rise to a theory that a pet is in the same league as child.

To that end Judge Cooper cites Raymond v. Lachmann (264 AD2d 340 [1^st Dept. 1999] and agrees with that court when it said it “does not direct that the resolution of a pet dispute be undertaken by engaging in a process comparable to a child custody proceeding.”  The judge set the matter down for hearing and limited the hearing to one day.  At its conclusion, baring an appeal, the decision of the parties would be final.  He said the awarding of the dog was to be complete, no shared custody could be agreed to in this hearing.  Judge Cooper did not want to bind the court to enforcing divorce decrees that include visitation with the pet. 

Judge Cooper expressed his desire that the parties work something out that will enable the non-custodial ‘pet parent’ the ability to see and enjoy the pet post divorce but this arrangement would be outside the divorce decree.  It is also subject to the desire, on the part of the parties, to ever speak of this again after the decree of full ownership is awarded

This was a groundbreaking decision.  It was also a heartbreaking decision.  The standard used by Judge Cooper, “the best for all concerned,” obviously left one party out.  Requiring sole custody of Joey as a result of the hearing and then asking the parties to have a discussion post award in which they might work out some sort of visitation on their own, will probably fall on deaf ears.

The NY Post of course placed this story on the front page of their December 4, 2013 newspaper.
http://nypost.com/2013/12/04/landmark-custody-battle-over-dog-in-divorce/

My husband Jim called me from his morning train commute to tell me about the article and the decision.  He didn’t want me to miss this landmark case. It is a story that will be reported again and again, in numerous venues, because pets are so important to us.  Although we may no longer like our human companion, we will always love our pet companion.   I find that relationships, which include a pet, are aware that the pet is often the last best thing they did together.  It reminds them of happier times and the shared joy of the pet.

Judge Cooper was completely on target when he stated the courts do not and should not look to acquire the responsibility or devote the resources to deciding custody of the pet.  Where he fell short, in this mediator’s opinion, is when he suggested this groundbreaking winner take all hearing.  It is a nice thought to suggest the people in this conflict can work out a visitation schedule after sole possession is awarded.  However, reality shows that these emotional issues are best addressed before custody is awarded.  Otherwise, after winner takes all, there is nothing left in the emotional tank for either party to continue the discussion about visitation of the awarded pet.

May I make a suggestion Judge Cooper without seeming absorbed in my own self-interest?  Instead of setting a groundbreaking one day hearing on who gets the pet, winner take all with a suggestion they work on visitation plans later outside the divorce decree, you may have served everyone’s interests better by requiring the parties take this issue out of the court altogether.  You could have required them to avail them of mediation, where these emotional issues can be fully addressed, custody and visitation terms completely worked out outside the divorce decree and assuring everyone is heard before a sole custody decree is made.  

It is often a long held grudge or slight that makes someone fight so hard or charge so much for the other party to keep the dog.  In mediation we get to the root of why they cannot share the pet, which often has little to do with the pet and much about the parties unspoken emotional baggage.  This is why mediation is the best venue in which to address the whole question of pets in divorce.  In the mediation venue the parties may find the peace they were unable to find as their attorneys fought their battles for them. An agreement outside the divorce between the parties, involving continued visitation with Joey, would have already been in place giving the non custodial pet owner peace of mind and not a hope and prayer. The judge could then have ordered the hearing after a mediated settlement was reached about the pet and simply awarded custody to one of the parties as mutually and peacefully agreed.

Addressing these kinds of deep-seated emotional issues involving hurt and disappointment is all mediators do.  If the mediators are non evaluative, more facilitative and understanding based/transformative they will enable the parties to workout their own agreement, on their own terms, enforceable as agreed, and as Judge Cooper said in the ‘best interests of all concerned.”  Helping parties address their fears and anxieties, assisting them in keeping the pet in their lives in some fashion that works for all is a process best employed in mediation.

If the divorce attorneys here had thought to employ a mediator at the outset of the discussions over Joey, for this one piece of the divorce discussion, it could have provided a venue in which the parties could engage in a less adversarial conversation about Joey.   When the negotiations between the parties about Joey fell apart their attorneys may have used mediation like techniques to help resolve this issue.  This is difficult to do while still supporting their client’s position.  Negotiations with a mediator’s heart but a litigator’s responsibility, falls short of what real mediation provides people in conflict.  Mediation would have saved these parties extraordinary amounts of money, time and heartache if their attorneys had seen the value in mediating this one disagreement.

True they would not have made groundbreaking law and created precedent for the scheduling of a hearing on who gets the dog in divorce proceedings.  By setting this precedent they have left the most important emotional issues underpinning the pet conflict unaddressed.  One party wins one party loses without ever working out the outstanding issues or how they might share the pet going forward.  So did it work for the best of all concerned?  I for one do not believe it did.  As the court in Raymond v. Lachmann so eloquently said in a similar case at odds over the pet, the courts have a “limited ability to [resolve such cases] satisfactorily.”

All Paws Up for Veterans Day

—By Debra Vey Voda-Hamilton

As we celebrate Veteran’s Day 2013, I would love to also celebrate the beings that are now helping veteran come back from the brink, time after time.  Lives that have often been spared who then turn around and rescue the rescuer.  They may have been bred and born to serve their disabled masters who need them, as their masters served their country.  There are several groups who enable vets to find needy companions.  These rescues often turn around and, as one solider put it; “She was the force that pulled me back into society.”

The sentiment of the power of an animal’s love and companionship is echoed over and over again on the Internet.  YouTube videos of service personnel coming home from war being greeted by their furry companions with the exuberance and abandon usually have over a million hits.  For some, they didn’t have a companion animal before they left for war.  It may have been easier as they were deployed, again and again.  They may not have wanted the responsibility of finding suitable caregivers for their pets, for the short and possibly long term.  However, upon their return from duty, after all the trauma they endured, many of these soldiers found themselves struggling to return to what they use to know.

photo courtesy of Patriot Paws

Enter several organizations like Pets for Vets, Pets for Patriots and Vets Adopt Pets to name a few.  These organizations recognized a need and filled it with a passion and commitment that has saved many 2 and 4-legged lives.  It has become commonplace now to train service dogs to become lifelines for soldiers returning with outward and inward scars.  Both companion and service animal have become partners with our most severely injured vets, those with observable and unobservable injuries.  Organizations like Hero Dog, ECAD, Patriots Paws and Vets Move Forward adjusted their training or expanded their program of services provided, to meet the veterans needs.   The service animal now fulfills a task the veterans are no longer able to perform for themselves.

It is my distinct pleasure to have met many of the people providing these animals and I whole-heartedly support them in their endeavor.  When you work with people and animals like I do, you are bound to cross paths with a patriot and their animal that are in conflict with another person. I endeavor to help find a peaceful way to solve the problem while keeping their animals. 

I support the findings that pets make our lives better. For patriots returning home from war, this knowing could be the difference between a life worth living and death.  Everyday 11 returning service personnel take their own lives.  The need for more companion and service pet connectors and trainers cannot be made any clearer.  Thank you all for your service. Thank you too, to all the connectors of pets with patriots.  You have helped rescue the rescuer. 

On this Veterans Day 2013 let us thank God for the continued safe return of our service men and women.  Thank you for your service and sacrifice.  Take a minute and thank the people who provided them with their link back from war to peace, in the form of an animal companion or service apparatus.  These people enabled many a returning hero to find the furry companion with an ear to hear and devotion to give.  A simple look or lick will encourage their person to take the next logical step and not give up the fight. Paying it forward in a way only a pet could.  You always find you receive so much more from these companion relationships than you ever give.

—Debra Hamilton

Hamilton Law and Mediation

Holiday-time with your pets

With the Holidays right around the corner, the last thing you may be thinking about is, “how will my pet be spending the holidays?”  If this inquiry jolted you into stark realization, here is the question you want to ponder before the holidays are upon you.

How will my pet be cared for during the holidays?

This question can include the following scenarios:

Is my pet going with me?
Is someone coming in to care for my pet?

Are my relatives/friends arriving with pets?

Am I arriving at a pet free environment with a pet?

Am I driving a significant distance with my pet?

Am I flying with my pet?

If any of the above scenarios describe what you are doing this holiday season then the following three tips for celebrating conflict free holidays with a pet are for you.

Ask, Prepare and Choose:

Ask if your pet is welcome at the home of another or ask if your guest intends to bring a pet into your home.  Whether you are pet friendly or not, setting up the ground rules for a visit by Fido or Fluffy is key to keeping conflict at bay.  If you are bringing a pet to someone’s home, initiate this conversation and respect the boundaries the person whom you are visiting sets.  If you talk about these guidelines before you/they arrive everyone is clear about how the visit will go and can make choices based on that information.

Having this discussion early gives the pet owner a chance to choose whether they feel comfortable bringing their pet and gives them ample time to decide, for comfort of their pet and themselves, on a different placement for the pet.  Speaking about ground rules gives the host peace of mind that her wishes for the visit were expressed.  This alleviates the whispered conflict conversations about the pet’s behavior in the kitchen.

Prepare early for your pet care or travel.  This isn’t the part where we talk about stuffed toys and food.  This is the part where we use Google maps to locate emergency vet clinics along your route, if you are driving, and at your destination if you fly.  It can be the most valuable use of your holiday preparation time.  What is your peace of mind worth?

When flying assure the pilot knows your dog is on board.  Do not assume the ground crew is speaking to the pilot.  Make a flyer with your seat number, name and cell number, the dogs name and their species for both the top of their crate and the pilot’s hand.

If driving cross-country with your pet, find a vet clinic, preferably an emergency clinic at every 50-mile marker.   Call each place you find before you leave to ask them about their holiday hours and when someone will be manning the fort.  If there are no emergency clinics close by, it may be worth your while to call a few regular vet hospitals and ask to speak with the vet.  Learn their holiday suggestions for their clients.  One sure way to befriend a vet is to say, “I am doing preventive reconnoitering for my holiday visit to Aunt Mary’s.  I would love to stop by and introduce myself.”  This will show your dedication to the pet and respect of the vet’s time.

Finally,

Choose whether your pet will be safer, happier and more content with you, at a kennel or at home.  If stress will be the operative word if you bring your pet to Aunt Mary’s, when she or several other attendees don’t like dogs, your pet will feel that and react.  If you truly don’t want the pet in your home either because it is untrained, unruly or you home is pet-unfriendly, take a gentle stand for yourself, maybe for the first time and choose to speak to the family member about leaving Fluffy or Fido at home.  The pet owner often appreciates honesty over watching you suffer in silence.  People want to enjoy their holidays.  They don’t want it spoiled by pet misbehavior, or relative misbehavior toward the pet.

There are several more things you can do while traveling with your pet.  I will cover those things next week.  For now don’t forget to bring your Pet’s Pet Passport along on the trip.  You can download one for free from my website- www.hamiltonlawandmediation.com.  It will keep, at your fingertips, all your pets pertinent information and picture for all eventualities when traveling.  You can also load on your smart phone the Pet Home Alone app for the iPhone. https://itunes.apple.com/us/app/pet-home-alone/id711449372?ls=1&mt=8

Happy Holidays and Enjoy your pets!

Debra Vey Voda Hamilton

CR 2013  HLM All Rights Reserved

Where Will the Naughty Dogs Go Now?

An article in our local paper about a local kennel and pet prompts the blog for this week.  It was not a flattering article about the kennel or the pet.  Instead of focusing on the lovely facility or the hundreds of happy dogs that come in its door every year and return home safely, it focused on the one naughty one that didn’t.  Why is that?  Often it’s because conflicts between people involving animals are newsworthy.  It has almost universal appeal to fellow dog owners.
 
The article touched upon the kennels willingness to take hard to handle pets.  It described the pet and kennel owners’ conversation, outlining the care the pet would receive during its stay.  This prior discussion and signed agreement was necessary because of the pet’s prior naughty behavior.  Then the author chose to skew the article in favor of the pet owner in this confrontation.  It is something people just do. People often relate better to a one sided story, especially people in conflict over a pet.  They are not always able to see both sides of a story.  They don’t always want to.
 
Yet now, where will the naughty dogs go while their owners are on vacation?  Will owners with dogs who are aggressive or who possibly fear bite never take a vacation?   Will they have to open their home to strangers or freeloading family members to watch their pet?  Will a kennel, which takes naughty pets as a favor to their client, be held liable for lack of care?  Even if they’ve all signed a clear agreement outlining the care the staff would provide.  In this case could things, at the time of the stay and after the unfortunate incident, been handled differently?

This case screams for a mediated settlement. In mediation, both parties are able to speak and get their version of the circumstances heard.   The kennel truly believes it did its best at the time, given the circumstances.  The pet owner feels they were completely negligent.  20/20 hindsight can always show glaring errors in judgment, on both the kennel and owners part.  Yet, instead of having a guided conversation in mediation, these parties chose to negotiate in emotion and fear and ended up in court.  If mediation had been considered, as an alternative to the failed negotiated settlement and then litigation, the parties may have had their say in a meaningful way.  After that, they could have attempted to resolve for the best outcome for all, thus having the dog’s death be constructive and not cause this uproar.

 
Take a hypothetical resolution scenario.  The kennel owner apologized for the dog’s death.  The owner is understandably upset.  They disagree and start to walk the path toward litigation.  Then one of them says, ‘maybe we can handle this in mediation.’  They know you can mediate first and still litigate if things don’t work out.  A mediator is hired.  The parties get to speak and be supported in a way they would not in court.  After a full and confidential discussion the kennel decides to pay the vet’s bill; the owner decides to help re-write the naughty dog agreements. This win win meeting of the minds enables the parties to retain their relationship while also allowing difficult pets to stay at the kennel.  Having input from the dog owner on what he needed to know before he left his naughty pet provides the kennel with better tools with which to serve their clients.
 
The above scenario provides good decisions being made by both parties.  The kennel does not get continuous adverse publicity from a single event and they engage the owner in helping them see how they can continue to take difficult pets.  The owner sees the care the kennel takes of its pet visitors and that their loss was an unfortunate accident and feels empowered to help assure it will never happen again.
 

20/20 hindsight is perfect.  To avoid this possibility altogether the owner would have had to hire someone to stay with his dog in the home.  Then the illness may have been spotted and treated immediately.   The kennel could have refused to take the dog or had a vet come to the kennel to see the dog at the owner’s expense.  If the owner wouldn’t pay then the kennel would need to decide if it is a smart business move and use it as a selling point or just take it as a loss.  Neither party thought of these things.  Now they are paying for their choices.  They are in court, spending thousands of dollars to obtain a decision.  That decision will, in all likelihood, fail to satisfy.

 

Initially considering mediation as a solution tool, even if you litigate in the end, provides the parties an opportunity to tell their version of the story and hear the other side.  This just doesn’t happen in litigation.  Only through your attorney does your story get told.  Next time you are in a conflict involving an animal, think mediate before litigate.  You will save thousands of dollars, retain relationships and maybe your choice of mediation will maintain a place for those naughty dogs.

—By  Debra Vey Voda Hamilton Esq./Mediator

Managing the Conflict

As I re-read Bill Ury’s book, The Third Side (Penguin-1999-2000), a passage jumped out at me and begged to be explored further in a short blog.  In the last 7 pages of Chapter 2, he speaks about Conflict Management and competition.  Never before has a process for resolving conflict been so clearly illustrated for me.  Ury used three words to describe the basics of conflict management; prevent, resolve, contain. 

Our primitive ancestors, the hunter/gatherers, proved this method of conflict resolution really worked.  It eliminated conflicts between tribesmen because they recognized they all had to work together to survive.  In fact Ury’s studies indicated that for 99% of human history, homo sapiens used this method of managing conflict for their mere survival.  It is only in the last 1% of human existence, when competition came into the mix, that aggression became the method of choice in conflict.

Prehistoric humans needed to work together for basic survival, thus the co-interdependent cavemen were actually more civilized than modern-day humans.  As Ury states,  “archeologists have found so little evidence of organized violence during the first 99% of human history.  [T]hey worked hard to coexist.  [M]ost conflict was handled constructively though coexistence and cooperation.”  So what happened?

Ury believes, when humankind settled down and became agrarian, the producers of food and product, they became competitive and protective of what it was they had and wanted.  He uses the example of Jane Goodall’s study of gorillas.  Initial in her study, the gorillas willingly share the food she provided among the group.  After several years of providing them with food, instead of being happy and at the ease receiving the food given by Goodall and continuing to share the bounty among each other, the gorillas became more aggressive and protective about their food.  The act of providing food without the need for interdependent cooperation among the gorillas resulted in their acting protective about what was ‘given’ to them over what might be given to another or eschewed sharing.

Similarly in animal conflicts such as neighbor with the barking dog, the breeder with a difficult owner, the owner with a difficult breeder, the vet with a difficult client, the client with a vet who doesn’t listen; they all have this same thing in common.  They are competing to be right, to win, to keep more of the pie for themselves and not share.  It is difficult for them to even imagine working cooperatively with one another much less about work on a solution to the problem that might enhance their lives, not detract from it. It seems people prefer to avoid or become aggressive and fight over conflicts involving animals rather than address the conflict and find a mutually peaceful solution.

—By  Debra Vey Voda Hamilton Esq./Mediator

9 11 2013

As we reflect today on what this day means to us and where we were, on this day, 12 years ago lets send a prayer out to all those who were effected personally by this event.  The shock never wanes for me, and I was 30 miles away.

Yesterday, a very dear colleague spoke about her experience on 9-11.  I’d like to briefly tell her story.

My friend worked in one of the towers.

That day she, for whatever reason, did not stop at the Crispy Cream Donut shop at the base of the towers as she always did.  She said she just wasn’t hungry right then and went straight to her desk.

About an hour later her tummy started growling.  She remembered she hadn’t gotten any breakfast.  She left her desk on the 84^th floor and she went to the 43^rd floor cafeteria in her tower for breakfast.

Her tummy growls saved her life.

Although I have know this woman for two years, I had no idea how close she came to not being right here, right now.  How her choice that morning meant the difference between gracing and not gracing my life with her brilliance.  I am profoundly grateful to her growling tummy.

I know there are thousands of storied about people who were late to work and were spared or were there by chance and lost.  This is the first time I have personally been affected by a 9-11 survivor.  She has directly touched my life.   

So today, as I take pause to reflect on those lost and those whose lives were changed completely that day, I will for the first time individually identify one person I am grateful the angels chose to spare.  She is such a giving person and a bright light.

We never know how we will impact someone else’s life.  Remember we are all here for that purpose.  Today and everyday remember, you never know.  Don’t put your light under a bushel basket. Recognize you can use each day to shine your magnificence out to the world.  Like my friend, share your light fully.  Only then will you realize just how important your one voice can be to everyone.

By Debra Vey Voda-Hamilton

www.hamiltonlawandmediation.com