“Just solutions to legal issues may sometimes lie outside the formal statutory framework.”

That is the opening line to an opinion of the Madras High Court in India regarding the ownership and custody of an elephant named Lalitha.

Lalitha was purchased by G. Thangappan in 1988, and he received a certificate of ownership. She then changed hands and was sold to two different individuals before being purchased by Sheik Mohammed in 2000. In 2002, he applied to have the certificate of ownership transferred to his name. His request was ultimately denied in 2020. He appealed that decision, and Justice Swaminathan held that because the sales and purchases of Lalitha after her initial purchase were illegal, a certificate of ownership could not be issued in Sheik Mohammed’s name.

While the court could not grant ownership to Sheik Mohammed, rather than treat Lalitha’s transfer to a government-run camp as a forgone conclusion, the Justice considered custody of Lalitha as a separate issue. The Justice noted:

Elephants are known to be sensitive and possessed of self awareness. They have passed what is known as [the] “mirror test.” The German naturalist Peter Wohlleben, after years of direct, personal observation, says that animals also feel the very same emotions which the humans are capable of. Feelings of love, grief and compassion are equally found in the animals.

The Justice decided to apply the same approach used in child custody cases to Lalitha’s case. He conducted a surprise inspection to see whether Lalitha was well cared for, and he determined that she was “happy and healthy” in her home. He concluded: “Removing her from the petitioner’s custody is sure to inflict a deep psychological wound on her. It is certainly not in her best interests. Applying the yardstick of what is good for Lalitha, I have to hold that the present arrangement should continue.”

Although the legal system classifies animals as property, there is a growing body of law where animals’ best interests are being taken into consideration rather than conducting a pure property analysis and awarding the pet to whomever is determined to have the best ownership interest.

Another example from much closer to home comes from the New York legislature, both chambers of which voted overwhelmingly in support of S4248. The bill, which was delivered to the Governor for signature on October 13, 2021, would require courts awarding possession of a companion animal in a divorce or separation proceeding to consider the animal’s best interest. If signed into law, New York would join Alaska, Illinois, and California as states with legislation directing judges to consider the well-being of animals in a domestic relations case.

Regardless of whether a state’s legislation directs judges to consider an animal’s well-being in a domestic relations case, the parties in a relationship can take steps to ensure that their pets’ best interests, which they should know best, are considered in the event of a split. Experts in domestic relations law and animal law recommend considering a “pet-nup” which, similar to a traditional prenup, sets out the parties’ agreement regarding what happens to their pet or pets if their relationship ends. This article describes the factors that couples should consider when planning for who will get the pet or pets in the event of a breakup. A court is likely to place great weight on an agreement the parties reached in determining what will happen with a pet in a divorce proceeding.

We are going to keep working to improve animal welfare and serving as a voice for the animals through advocacy. Together, we can continue to make a difference in animals’ lives. If you know someone who you think would be interested in this information, please share this article and encourage them to sign up for our Legislative Action Network.

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