Have you ever been caught in the middle of an argument and been asked to pick a side?  This kind of conduct is hardly acceptable; however, it is tolerable when the argument is of trivial nature.  Now, what if the argument was something more serious such as a custody battle between divorcing couples, then what happens?  How do spousal disputes, separations and divorces influence the authority of who can or cannot contract for veterinary services?  This question is particularly important when executing irreversible procedures such as euthanasia, spay/neuter, cosmetic (ear cropping, tail docking, and declaw), and relinquishing the pet for adoption.  Unfortunately, family pets are often the victims of such dreadful conflicts and veterinarians have the potential to be dragged into the middle of an ugly fight.  So the question becomes, how would said issue affect the veterinary field, who is looking out for the animal’s best interest and how could one remedy the situation if ever encountered?

To better exemplify the situation; let us take a look at a probable worst-case scenario: Mrs. Jones is documented as the “owner” of her 10 year old, male toy poodle, “Olli,” on the admission form for ABC Animal Hospital; however there is no mention of Mr. Jones on the form.  Mrs. Jones is a long-term regular reliable client and has always been responsible for bringing in her beloved “Olli” for appointments. One day Mr. Jones made an appointment for “Olli” to be euthanized for the reasons that he has been urinating on the carpet and barking a lot.  Coincidently, the practicing veterinarian was on vacation this day and a relief veterinarian was working in his place.  Despite the relief veterinarian’s effort to present alternative options, Mr. Jones adamantly requested to go forth with the procedure and signed a simple consent form (see Figure 1).  Furthermore, it had been common knowledge to the hospital staff that the Jones’s were in the middle of a heated and combative divorce; however, unbeknownst to the relief veterinarian, he euthanized “Olli.”  None of the hospital staff members thought twice about Mr. Jones’s authority to request said procedure.  A couple of days later, the hospital, and the practicing and relief veterinarian were faced with a lawsuit filed by Mrs. Jones claiming malpractice and tortuous interference with property.  She sued for $50,000 in emotional distress damages.  It was later made evident that Mr. Jones euthanized “Olli” to spite his wife.

Mrs. Jones’s claim for emotional damages is not far fetched and neither is the scenario.  Courts are taking a second look at whether animals should be treated as personal property under the law similar to inanimate objects.  This is evidenced by cases focusing on custody disputes and laws being introduced to apply custody laws typically applied to children, to pets.  One such example in which the court exercised traditional property laws for the animal but was given much attention with regards to pet custody issues is the DeSanctis v. Hurley Pritchard (2002) case.  The Plaintiff, Anthony DeSanctis, appealed to enforce a contract, which was drafted and signed prior to the divorce, with his ex-spouse, Hurley Pritchard, for sharing possession of their beloved dog, “Barney.”  However, the petition was denied by the Superior Court of Pennsylvania with reason that pets are by law property and said contract would be analogous to granting visitation rights to an inanimate object such as a piece of furniture.  This case caused the Appellate Court of Pennsylvania to revisit the case and question the validity of the verdict.[1]  The question presented for review states as follows

“In affirming the trial court’s Order dismissing the Complaint,

which sought to enforce an agreement for shared possession

of a beloved family pet upon the parties’ divorce, did not the

Superior Court improperly disregard the parties’ right to share

a property interest in the pet and thereby violate public

policy recognizing the unique character of pets?”[2]

The Appellant, Anthony DeSanctis, and Appellee, Lynda Hurley Pritchard, got married in 1991 and in June of 1994 purchased together a mixed breed Golden Retriever/Golden Labrador dog named “Barney.”  In 1996, the parties separated, at which time a contract was drafted and signed, granting certain custody rights for each party.  The agreement would take effect once a final divorce decree was issued or on October 12, 2000, whichever occurred first.[3]  Excerpts have been taken from said agreement stating:

“Barney is Lynda’s property and she will have full custody.  Tony

is granted visitation only in accordance with this agreement…..The

weekend will be the second weekend of the month….Pick-up will

occur at 5:30pm on Friday of the second weekend of the month and

return at 8:00pm on Sunday….If Lynda moves to a new pick up

location, somewhere half-way between Lynda and Tony will be

mutually agreed to…..In the event of Lynda’s death, Barney will go

to Tony.”[4]

In order to obtain visitation rights with Barney, DeSanctis agreed to take on a large portion of the couple’s debt.  Despite DeSanctis’ efforts to abide by the contract, his visitation rights were denied by Pritchard upon her schedule to remarry and relocate.  The contract had been breached by Pritchard and DeSanctis’s plea to get the contract reinstated had been rejected.[5]  This case illustrates how extensive and time-consuming issues of ownership and custody can be.  And it further illustrates the importance of having the proper documentation to support the claims.  The differences in perspective of an animal’s place in an individual’s life cannot be determined or disregarded because of what is written in the legal language.

Additional examples of pet custody battles can be demonstrated by Raymond v. Lachman 264A.D.2d 340,341 (N.Y.App.Div. 1999).  The Appellate Division of the Supreme Court of New York recognized the value of a family pet and deemed that the cat should “remain where he has lived, prospered, loved and been loved for the past four years.”  In Zovko v. Gregory, the court, contrary to traditional thinking, took into account the best interest of the cat, which is usually applied in child custody cases, and settled a custody dispute between two former roommates.  The roommate who provided the better care was given custody of the cat.  Additionally, in Arrington v. Arrington 613.S.W.2d 565 (Tex.App. 1981), a property division which included visitation with the family dog was appreciated.  And lastly in Pastore v. Pastore, the Superior Court of Connecticut decided that personal property distribution and pet disputes would be subject to intervention by the Family Relations Office.[6]

Custody disputes have been sprouting up in many states such as California, Connecticut, New York, Pennsylvania, Texas, Tennessee, and Washington, to name a few.  In May of 2007, in Memphis, Tennessee, Ronald W. Callahan Jr., committed suicide, leaving behind a 2 million dollar estate and his dog, Alex.  Callahan Jr.’s divorced parents, and his fiancée engaged in a custody battle over Alex.  At the request of Callahan Jr.’s mother, Alex was appointed an attorney, Paul Royal, associate at Crislip, Phillip & Associates, to represent his best interest.  Royal, ultimately decided that each party should keep Alex for 2 weeks at a time and settled the dispute as such.[7]  On a similar note, according to the LA times dated January 9, 2005, Stanley and Linda Perkins spent $146,000 on their divorce battle back in 2000.  Included in said sum was the cost to fight for custody of a pointer-greyhound mix, Gigi.  Linda Perkins presented to the courts as part of her evidence a video called “Day in the Life of Gigi,” which illustrated how well the dog had been taken care of and how much Linda Perkins loved Gigi.  Naturally, she won the custody battle.[8]  Lastly, in Seattle, Washington, Dave Rose sued his ex-girlfriend, Lori Hughes, for trying to keep the Siberian Husky, HeyZeus, they had bought together in Alaska.  Although Rose thought about kidnapping HeyZues from his ex, he sought a lawyer instead to gain partial custody of the dog.  Four thousand dollars later, the dispute was settled outside the court and Rose was granted partial custody of HeyZeus.[9]  Pet owners are more aware of the flexibility and willingness of the courts to grant them their “rights” as well as the animal’s “rights.”  This is a significant matter because the same situation can occur in the veterinary office as well.  Clients may be more inclined to file a lawsuit if a veterinary hospital lacks the proper documentation recognizing exclusive ownership.

So, what can veterinarians do to avoid custodial disputes and the like?  Managing the risks of possible lawsuits can be achieved by being vigilant and keeping up to date with current veterinary legal issues.  It is the sole responsibility of the veterinarian to protect himself from cumbersome charges filed against him.  Some ways in which one may be able to minimize the risk of liability and maximize proper documentation of records is by: 1) enforcing the use of (i) complete admissions form explicitly indicating who does and does not have authority; and (ii) forms of directives which include an advanced directive and a Do Not Resuscitate Order;[10] 2) annually reviewing the admissions and other signed forms with the client and updating the files accordingly; 3) educating the hospital staff on being attentive to the client’s needs and problems and logging any questionable behavior or comments; and lastly, 4) using consent forms for all procedures, especially irreversible ones.  In our hypothetical scenario, ABC Animal Hospital did use a consent form for “Olli’s” euthanasia, and albeit this action may minimize liability, the hospital would still be at risk especially since the consent form did not provide for Mr. Jones as the sole and exclusive authorizer of such procedures.

Dr. James F. Wilson, a pioneer in veterinary medical law, and author of Legal Consents for Veterinary Practices, states that “consent forms are evidentiary documents that serve to prove that clients agreed to professional services after having been informed of proposed medical or surgical procedures, their risks, and the probable outcomes.”  Being able to utilize consent forms appropriately, can not only minimize legal ramifications, but can also achieve the following, as per Dr. Wilson: educating the client, enhancing communication between the client and doctor, decreasing misunderstandings and complaints, highlighting key points, reminding clients that medicine is not absolute and there are no guarantees, indicating the repercussions of client choices and undesirable behavior, fulfilling state board requirements (depending on state), and assuring payment for rendered services.[11]

The following are the four types of consent forms that are generally used in veterinary practices: 1) verbal consent, which may or may not be documented in the medical records; 2) written consent but does not state the owner; 3) written consent that states owner but does not give him/her sole authority; and 4) written consent that states owner and gives him/her sole and exclusive authority to make decisions (see Figure 2).  The first type of consent is 1) hard to prove in the event a lawsuit ensues, because it would be the veterinarian’s word against the client’s; 2) the facts may not be articulated clearly and the likelihood of a misunderstanding is much greater; and 3) there is nothing to fall back on when one needs to revisit the facts .  The second type of consent does not even mention the owner, giving just about anyone the authority to make important medical decisions.  The third type of consent is better than the second because an owner is being specified; however, if the abovementioned scenario ever presented itself, the veterinarian would not adequately be able to defend himself.  The last consent form should be the one in which veterinary hospitals utilize in order to evade the risk of liability.  Its specificity of ownership and authorization gives the veterinarian a clear indication of who does and does not have the authority to make any and all medical decisions.

In addition to the admissions form, veterinarians may consider a secondary form to outline proper and sane instructions for emergency scenarios.  The forms of directives include two different types: the advanced directive which can be subdivided into the durable power of attorney and a living will; and the Do Not Resuscitate Order (see Figures 3-5).  The durable power of attorney gives an alternative person, in case of an emergency, to represent the desires of the owner in their absence.  The Living Will gives the veterinarian permission to withhold any life-sustaining medical care if the pet meets the criteria laid out in the directive and in the absence of the owner.  Finally, the Do Not Resuscitate Order states that no one should revive the pet once the breathing or heart has stopped, again, in the absence of the owner.  Although forms of directives are commonly used in the human health field, they are not as prevalent in the veterinary profession.  This is something to consider given the public’s evolving perspective on animal welfare issues.  Forms of directives may serve to be very useful in the event of an emergency and the authorized owner is unavailable to make medical decisions.[12]

The prevalence of these custody battles should make veterinarians wary of circumstances in which clients indicate personal relationship problems.  Veterinarians will undoubtedly be forced to partake in custodial affairs as more people learn about the phenomenon.  These concerns may be attributed to guardianship issues which come up ever so frequently.  Introducing certain language into the legal writing of animal law could have serious repercussions for the veterinarian, the owner and the pet itself.  Having guardianship as opposed to ownership of an animal would mean that current pet owners will not have the flexibility to choose the type of veterinary care depending on their finances; and they can be reported to the police for problems such as neglect, and held legally responsible.  The punishment for animal cruelty will be much steeper because as a “guardian,” animals are placed on the same level as children.  On the veterinary side, malpractice suits may sky-rocket, increasing the cost of veterinary care.  This in turn will create a vicious cycle, because as a “guardian,” one is obligated to provide medical care, but with higher costs, one may not be able to afford the proper care.  Taking it one step further, this will most certainly increase the number of stray/euthanized animals because potential pet owners will not want to pay for the high prices of veterinary care.  Whereas, as an owner, one gets to choose, according to his/her financial state, which treatments to apply.  Admittedly, in theory, it may seem nice to be the “guardian” of an animal but changing the legal language will bring about more negative consequences than one may have bargained for.  One can still love and care for his/her pet without having to change his/her title as an owner.

In conclusion, the fact that the public’s view on pets, particularly in terms of the standard of medical care and their welfare, is consistently changing, it is important for veterinarians to be aware of the current events because of the increasing number of animal related issues.  Pet custody battles are predicted to create hurdles in the future of the veterinary profession; and veterinarians should brace themselves of the consequences.  Enforcing the proposed management tools only aids in limiting liability when faced with problems such as pet custody battles, but they do not solve them.  Presumably, there may be additional obstacles which need to be addressed as a consequence of protecting one’s license, practice and sanity.

Figure 1

Procedure Consent Form

ABC Animal Hospital

Owner’s Name:                       Mr. John Jones

Address:          123 Turtle Road, Greengrass, NJ 12345                                            
Patient’s Name:                       Olli                                                                             
Species:           Dog                                                                                        
Breed:                         Toy Poodle                                                                             
Sex:     Male                                                                                       
Date of Birth: Feb. 9, 2007                                                                           

I hereby give Dr.  Brown , the  ABC Animal Hospital (name of veterinary facility), and any authorized agents, staff, or representatives consent and authority to perform the following procedures or operations:           Euthanasia                                          

I understand that hospital support personnel will be used as deemed necessary by the veterinarian.

Signed:                        John Jones                                                                  
Date:   May 1, 2014                                                                                       

I consent to the above procedure(s).

Name:              John Jones                                                                              
(Please Print)
Signed:                                                                                                           
Signature of Consenting Agent
Date:   May 1, 2014                                                                                       

[1] DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002), PA – Pennsylvania Supreme Court.

[2] DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002), PA – Pennsylvania Supreme Court.

[3] DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002), PA – Pennsylvania Supreme Court.

[4] DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002), PA – Pennsylvania Supreme Court.

[5] DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002), PA – Pennsylvania Supreme Court.

[6] DeSanctis v. Hurley Pritchard (Petition for Allowance of Appeal) (2002), PA – Pennsylvania Supreme Court.

[7] ABA Journal, Ward, Stephanie Francis, “Canine Case is Doggone Tough,” May 8, 2007, http://www.abanet.org/journal/ereport/my18dog.html (May 18, 2007).

[8] Los Angeles Times, Bhattacharya, Sanjiv, “To Love, Honor and Belly-Scratch,” January 9, 2005, http://www.latimes.com/features/printedition/magazine/la-tm-petcustody02jan09,1,718285 (May 15, 2007).

[9] The Seattle Times, Aviv, Rachel, “Exes play tug-of-war for pets,” August 29, 2004, http://seattletimes.nwsource.com/html/localnews/2002019290_dogcustody29.html (May 15, 2007).

[10] Wingfield, Wayne E., and Raffe, Marc R., The Veterinary ICU Book., (Jackson Hole, Wyoming, Teton NewMedia, 2002) pp.1217.

[11] Wilson, James. F. DVM, JD, Legal Consents for Veterinary Practices, Fourth Edition., (Yardley, Pennsylvania, Priority Press Ltd., 2006) pp.1-5.

[12] Wingfield, Wayne E., and Raffe, Marc R., The Veterinary ICU Book., (Jackson Hole, Wyoming, Teton NewMedia, 2002) pp.1217 – 1222.