Updated May 15
Ex-couple's dog custody dispute before Maine Supreme Court tests idea that pets are just property
A Bangor woman appealed a lower court decision granting custody of Honey to her former partner. Her attorney told justices Tuesday that courts have the authority to consider all factors in a pet custody case.
By Keith Edwards Kennebec Journal and Dennis Hoey Staff Writer
Honey, a boxer-lab mix, sits with Jessica Sardina in Bangor in an undated photo. Sardina sued to share custody of Honey, who was adopted by Sardina's former boyfriend. Samantha Sardina via Associated Press
AUGUSTA — Maine's highest court heard oral arguments Tuesday in a potentially ground-breaking custody case involving an unmarried couple and a Labrador retriever-boxer mix named Honey.
Jessica Sardina, 25, of Bangor is appealing a lower court decision that granted sole custody of Honey to her ex-boyfriend, Kelvin M. Liriano, 25, of Old Town. The District Court judge ruled that Honey was Liriano's property because his name was on the adoption papers.
After the breakup, who gets the pet?
Honey and Jessica Sardina Photo courtesy of Jessica Sardina
However, Sardina's lawyer argued before before the Maine Supreme Judicial Court at the the Capital Judicial Center on Tuesday that a pet should not be considered the same thing as property and that the courts have the authority to consider all factors when determining a pet custody case.
Outside the courtroom in an interview after the oral arguments, Sardina explained that she was Honey's sole caregiver and Honey moved in with her even before Liriano did because he couldn't have a dog at his apartment, and that she fed Honey, took her to veterinary appointments, registered her, cared for her when she had special dietary needs while suffering from lupus and raised Honey with her two other dogs, Murphy and Beasley, who both miss Honey as well.
She said Honey is family to her, not property.
"Honey has such a strong bond with me and the other dogs," Sardina said. "They grew up together. I treat them like they're my own kids.
"That's why this is so important to me. I've always been her sole provider and caregiver. She's a member of the family. She's not property."
During the hearing, Chief Justice Leigh Saufley noted that earlier in the day the court had heard arguments in a case involving the death of an infant and a sexual assault case. She said people who love dogs understand why "heartstrings brought you here," but questioned whether deciding how adults should share their animals is something the state's judges should be spending their time on.
"What happens with the dog when unmarried parties go their separate ways, is that really something we want judges in this state to spend their time on?" Saufley asked.
She said the courts cannot elevate dogs to the level of children in custody disputes, but asked if the state should do something different with pets other than treat them as property under the law.
"There is nothing about this particular appeal I feel is frivolous. I'm trying to evolve part of the law," Gene Sullivan, Sardina's attorney, said under intense questioning from the justices in a roughly 40-minute session on Sardina's appeal seeking custody of Honey. "I don't believe companion animals should be treated the same as property."
Pets are considered property in all 50 states, and only three states – Alaska, Illinois and California – have specific laws that address pet custody when a marriage dissolves, said Marcia Kramer of the Chicago-based animal advocacy group National Anti-Vivisection Society. None has a statute dealing with pets when an unmarried couple breaks up.
"Most of us who've had animals consider them to be family," Kramer told The Associated Press. "The legal system has been slow to catch up with that idea."
In an email Tuesday night, Sullivan said he urged the justices to issue an "appropriate order considering not just antiquated property notions, but a totality of the circumstances, including everything my client did for Honey the dog during their time together while with Mr. Liriano, which we believe was substantial."
"The district court appeared to sidestep this equitable approach by concluding: unfortunately I'm stuck with the laws of property," Sullivan said the email. "We believe the (Supreme Judicial) Court has more authority."
Liriano and Honey did not appear in court Tuesday, but his Bangor-based attorney, Jonathan Hunter, told justices that Liriano decided on his own to adopt the dog, the couple cared for Honey together, and the lower court's decision was well-founded on established property law.
"He decided to adopt the dog from the shelter, he adopted Honey, signed the adoption paperwork, he paid the adoption fees," Hunter said. "A month later Mr. Liriano and Ms. Sardina moved in together. During that time they both cared for the dog. Ultimately, Ms. Sardina kicked him out but refused to give up the dog."
Hunter said the district court judge who heard the case correctly ruled that Honey belonged to Liriano. Hunter declined to comment further after the oral arguments Tuesday.
"I am not able to comment on this pending case," he said Tuesday night in response to an email seeking comment. "I have passed on your request to my client, but do not anticipate he will have any comment at this time.
Attempts to reach Liriano Tuesday night were unsuccessful.
Sullivan said the district court judge said Maine's property law standards limited what he could order regarding custody of Honey. Sullivan said Maine law gives judges more discretion than that used by the district court judge.
Asked by Justice Ellen Gorman what remedy he and Sardina sought, Sullivan said the court should rule that judges can do more than simply follow property law when it comes to deciding custody of pets. He said he believes Maine law gives judges discretion, and suggested a standard considering what is best for all concerned when it comes to companion animal custody when a couple splits up.
Pet custody disputes across the country have been on the rise since 2001.
According to a 2014 survey conducted by the American Academy of Matrimonial Lawyers, dogs fetched the top spot as the most disputed family animal with cats a distant second. About 22 percent of the attorneys who responded to the survey said courts are more frequently allowing pet custody cases to be heard.
"While pet custody cases are not an everyday occurrence, far too many spouses attempt to initiate these disputes as a negotiating strategy, often believing that they can use the animal as a kind of bargaining chip," the AAML said in a statement.
Under a new law in California, which took effect Jan. 1, courts will be allowed to differentiate pets from property during divorce or marital separation cases.
Maine's highest court didn't decide the matter Tuesday, but is expected to issue a written opinion. Sullivan believes the court will reach a decision within a month or two.
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