When Pets Are the Center of a Divorce Custody Battle
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When Pets Are the Center of a Divorce Custody Battle

Custody battles over children go with the territory of divorcing couples, but when it comes to pets, this couple had to make their own laws.

Misha, a 13-year-old collie mix, is slowing down considerably. In fact, she's having so much trouble hearing that she responds primarily to hand signals. Jo Shoesmith, 46, of Harpers Ferry, West Virginia, and her ex-husband, Marty Stephens, 49, who lives in Clarksburg, Maryland, know it's time to rethink the terms of the joint custody arrangement. After all, is it really fair for Misha to be shuttled between two homes 40 miles apart?

Joint custody -- of a dog? But of course. For people who regard pets as family, it makes perfect sense to treat them as such if the family unit falls apart. And yet states regard animals as possessions akin to couches and TVs. A divorcing couple is supposed to divide stuff up, but Jo and Marty, like a growing number of people working out pet custody, couldn't think that way.

Both pet lovers when they met at an animal-protection conference. Jo and Marty married in 1990. Their family eventually grew to include three dogs (Misha, Shay, and Nike) and three cats (Violet, Momma Kitty, and Cotton). As the marriage started to unravel, one thing Jo and Marty realized was how much their dogs hated it when they argued. Even the slightest outburst would visibly upset their three mutts, most especially poor little Nike, who would whine and pace as if begging his "parents" to please make peace.

When the couple decided to split, in 1997, there was no question that they would find a way to share custody of their pets. "Neither of us could imagine saying goodbye to our animals forever," says Marty, who works as an administrator for the Humane Society of the United States. "We had to put aside the issues we divorced over to think about what was good for the animals," says Jo, a residency counselor at a retirement community. "Being such devoted animal people, it wasn't hard for us to focus 100 percent on them."

Friends and family thought the notion of a pet custody arrangement a bit extreme -- even their lawyers scratched their heads when they thought about how, exactly, to word such a thing. In this way, Jo and Marty were pioneers, and they knew it. "Certainly, for us the animals were more than just an appliance," says Marty. "A small part of the reason we had them written into the divorce arrangement was to demonstrate to the lawyers and the court that even though the legal system may think of these animals as property, they're practically people to us," he says.

Nowadays, animal law courses are offered at more than 40 law schools, many of which include pet custody on the syllabus. Lengthy and sometimes bitter custody battles are taking place across the country to determine who gets the pets -- with violators even doing jail time. In May 2001, Lynn Goldstein, of Louisville, Kentucky, spent 30 days in the slammer for refusing court orders to turn over cats Beanie and Kacey to her ex-husband, Tom Nichols, and then lying under oath that they had run away.

For Jo and Marty, it took some doing to get the logistics right. The cats never could abide the car ride between homes, so they've remained, by mutual agreement, at Jo's house. Jo and Marty tried meeting halfway between their homes every week to hand off the dogs, giving the three canines a week in each place. The frequency proved disruptive to all, so eventually Nike, Misha, and Shay fell into a more comfortable rhythm of two weeks with Jo, where pampering was the main event, followed by two weeks with Marty, the outdoorsman.

Clashing parenting styles was one hurdle both had to work on. Marty tried to train them to stop jumping on people, while Jo rather liked it. But when it came to the safety of the animals, the couple found compromise easy. When Marty was about to install a four-foot fence around his yard, Jo urged him to make it taller to protect the dogs. He did.

Then came the sad chain of events of 2003. First was Violet, who succumbed to old age. Then it was Shay, whose pulmonary condition finally got the best of her. Five months later, Nike did not survive emergency abdominal cancer surgery. The grief over these losses was intense, but Jo and Marty, neither of whom has since remarried, comforted each other during the hardest times in any pet owner's life. They may not have had a marriage left, but they had this.

And now Misha. She's getting old and has become the leader of the three other dogs Jo has acquired. Maybe she needs Jo's unique brand of mothering more than ever. Marty has no other pets at his house, where Misha sometimes seems lonely.

So they've decided. Misha will stay full-time with Jo. Marty will come over and visit Misha every month, playing in the backyard and sitting under the tall hardwoods to take in the afternoon shade. Jo is not surprised that Marty would agree to this. "For both of us, this is all about respecting that the other one really cares about the animals," she says.

Six years after their divorce, the couple is still estranged in every way except for the animals. Jo and Marty's commitment to their pets has not wavered. They continue to share all expenses associated with Misha and the two surviving cats, and they consult each other on medical decisions.

"It hasn't always been easy," Jo says. "But we've had to be our best selves, because we've both had to put our animals before ourselves."

Originally published in Ladies' Home Journal magazine, April 2005.