It wasn't as though she asked for much: a warm bed, a full belly, a squeaky chew toy. Of course, she had needs. What dog didn't? But Missy the Chihuahua never complained. She had a good home, a big back yard and the unconditional love of her two parents--Karen and Ed. Yes, there might have been some sibling rivalry from her two stepterriers, Pepper and Petra, but nothing overly dysfunctional and nothing that a good stomach scratch couldn't cure.
Missy had always known she was special: Ed would let her sit on top of his shoulder as they drove around Garland in his Ford; Karen would feed her, walk her, dress her in her favorite sweater when the Dallas winter caused her 7-pound body to shiver. Missy needed to be needed. Her large doe eyes were an open invitation to connect with her on some soulful doggy level. Hers was a good life--that is, until the divorce turned her whole world upside down.
Missy should have seen it coming: the arguments, the way Karen never wanted Missy to go anywhere near Ed. After Karen filed for divorce, Missy hardly saw Ed. And Karen kept busy, getting ready for the custody hearing that would decide where Missy would live. But nobody bothered to ask Missy what she wanted, what was in her best interests. What did the judge think she was anyway, just another item of community property, like the kitchen table or chairs, that the court could divide upon divorce? Didn't the law recognize that Missy was a living, breathing thing with thoughts and feelings of her own?
The short answer is no. Animals are considered tangible personal property in Texas as well as most other states. They can be owned, leased, bought and sold. As long as their owners don't abuse them, they have no rights or privileges; they are not entitled to equal justice or any justice at all for that matter. But animal rights activists are behind a nascent trend in the legal system to treat animals as something more than property. Although courts stop short of granting them individual rights, some recognize their special status as sentient, emotive beings. Many divorce judges have begun to decide pet custody as they might child custody, granting owners custodial and visitation rights by using a "best interest of the pet" standard. No Texas appellate court has dared apply this standard, though in the matter of Missy the Chihuahua, one Dallas judge has come pretty damn close.
When Karen Bennett decided to divorce Ed Guice after five years of marriage, all she wanted was out. There was little to argue about: no children, no fault, no community property to speak of. What there was, however, was a deep attachment to the baby of the family, a sassy tan Chihuahua that seemed to love everyone, even Guice. "There was only one issue in this divorce," says Bennett's attorney Beverly Storey, "and that was Missy."
In March 2000, at a hearing, things started to get messy. Years before, Guice had been entrusted with the care of his father's bulldog, and the animal died of a heatstroke before Guice could get him to the vet. Storey argued that if Guice's history was any indication of the way he treated animals, the court should just award Missy to Bennett outright.
"I wasn't aware that bulldogs were so susceptible to heat," Guice says in his own defense. From his testimony it became evident that Guice was emotionally connected to Missy, welling up in tears when he told the judge that Missy was the only thing in his life that loved him. The court ruled that while the divorce was pending, Guice would "have access to dog Missy on the second and fourth weekends of each month from 9:00 a.m. Saturday until 6:00 p.m. Sunday."
Guice never missed a visitation, not unless Bennett denied him access to Missy, which, he alleges, happened on at least four occasions. Bennett claimed Guice would return the dog overheated and thirsty, and she grew afraid he would let Missy die the same death as the bulldog. So she cut him off, said she would not let him see Missy again. By August 21, Guice couldn't take it anymore; he broke into Karen's home, snatched Missy and kept her for nine days until his attorney Megan Rachel convinced him to return the dog.
When it came to the final divorce hearing in September, Bennett contended that Missy had been purchased as her own separate property. Dallas family law Judge Craig Fowler decided, however, that Missy was community property and each side was entitled to an undivided half interest in her. Based on the undisputed testimony that Bennett was Missy's primary caregiver, Bennett was awarded primary possession of the pup. The judge, however, expanded Guice's visitation schedule to include overnight stays on Fridays.
Although Judge Fowler branded Missy property, he treated her as something more, says Barbara Newell, attorney for the Animal Legal Defense Fund, a Washington, D.C.-based animal rights organization. "Clearly the court understood that dogs such as Missy are not mere chattels but rather living, feeling beings," Newell says. At a minimum, she says, a court's inquiry shouldn't end with who paid for the animal. "There should be some review of the two homes. I am not saying it should be the identical process you have when children are involved, but the animal has some interest in where he or she ends up living."
Rick Cupp, tort professor at Pepperdine University's School of Law, couldn't disagree more. Cupp is concerned that animal rights activists may be promoting an underlying agenda of treating animals and humans as "moral equivalents" by giving them the same rights. He believes that the best-interest standard should be reserved for children, not pets. A dog may have some level of cognition, may be able to feel pain and grieve loss, but "no judge can know with any certainty what's in a dog's best interest," he says.
University of Texas family law professor Jack Sampson is even more pragmatic when it comes to granting visitation rights to pets. "Obviously, a judge is asking for trouble," he says. "If keeping a divorcing couple in close contact often doesn't work out where children are concerned, how can it work with a dog?"
Even after the ruling, Missy felt torn, caught in the middle, her tail wagging less, her big eyes drooping more.
With each visitation encounter, she could practically smell the tension between Guice and Bennett--particularly from Bennett, who couldn't wrap her mind around the fact that even though she had divorced Guice, he was in her life for the rest of Missy's.
"Every two weeks, I had to keep seeing him," Bennett says. "Sometimes he arrived early, other times late, demanding more and more time with Missy to accommodate his work schedule." He would barrage her with e-mails and voice mails, she claims, "always trying to control me through the dog."
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By Christmas, Bennett had grown fed up with the arrangement. She offered to buy Guice another dog if he would just terminate his rights to Missy, but Guice wouldn't hear of it. "Missy had chosen me as her companion." Instead he offered to buy Bennett a "replacement" Chihuahua in exchange for sole custody of Missy.
Bennett agreed. "I felt like I had to sacrifice Missy to get that man out of my life and gain some mental stability."
Last week, her lawyer, Storey, signed an order agreeing to modify the party's divorce decree. The order states that Guice is granted full ownership rights to Missy: "The court finds that the requested modification is in the best interests of the parties and the dog, Missy."
Whether a change of custody is actually in Missy's best interest is a moot point: She has no right to appeal. Not yet anyway.