Including Pets in Protection Orders:

1. Including Pets in Protection Orders: Protecting Both Pets and People

2. The Law—Enacted October 2012 • The new law allows a court to order: • the possession, care, and control of any domesticated animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household to the plaintiff-petitioner in a no contact or restraining order. The court may order the defendant to refrain from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming, or otherwise disposing of such animal. • M.G.L. c. 209A, § 11.

3. Our Goal: What would be persuasive to a judge?

4. Three Problems • Lack of information/limited judicial treatment • Impact in a divorce? • What is a domesticated animal?

5. Problem 1: Lack of Judicial Treatment

6. Limited Judicial Treatment: One MA Case • Before the Massachusetts law became effective, a court acknowledged threats to a family’s dog in granting a protective order to plaintiff against her ex-husband. Flatley v. Abrahamian, No. 11-P-1365, 2012 WL 4669341, at *1 (Mass. App. Ct. Oct. 4, 2012). • The dog was not included in the protective order.

7. Problem 1: Limited Judicial Treatment • How did we solve this problem? • 27 state survey of cases of states that have passed similar legislation. • Conduct a survey of advocates to determine what they found most effective in their day to day experience.

8. So what were the results? • We found that: • Allegations of physical harm • Threats to kill/injure • Stalking/harassment • Neglect • Stressing the importance of the petitioner’s relationship with her companion animal • ….were all relatively effective in states that permitted animals to be included in protective orders.

9. Physical Harm/Threats • In an Arkansas case, plaintiff attempted to get a protective order for her animal after her ex-boyfriend “threatened to kill her dog” and told her she “would find [her] dog dead in [her] backyard.” Simmons v. Dixon, 240 S.W.3d 608, 609 (Ark. Ct. App. 2006). Did not grant the order covering the dog. The court was sympathetic, but no statute allowed for the order at the time. • What facts patterns were persuasive? • Kicking • Burning • Throwing • Hitting • Attorney Grievance Comm’n of Maryland v. Painter, 739 A.2d 24, 27 (Md. 1999) (throwing dog off second story deck in front of wife and daughter).

10. Stalking/Harassment • Allegations of stalking/harassment can be sufficient. • In a Minnesota case, the petitioner saw respondent in the area where petitioner was dropping off her dog for two consecutive days. Respondent, petitioner’s neighbor, was also peering over the fence into petitioner’s backyard. Ekman v. Miller, No. 18-FA-11-29, 2011 WL 7783906 (Minn. Dist. Ct. April 28, 2011).

11. Problem 2: What Happens In Divorce?

12. Problem 3: Divorce Basics • Animals are property in Massachusetts. Mass. Gen. Laws Ann. ch. 266, § 112 (West 2012) (listing injury to domestic animals among crimes against property). • Some other states have adopted a “best interest” of the animal approach, so that may develop here.

13. Divorce Judgments : Take-Aways • 209A restraining order itself—not admissible. Underlying facts, however, are helpful. • In addition, the party who was granted the restraining order will have been the primary caregiver for the domestic animal for a period of time; this fact likely will be persuasive to a court in deciding to grant ownership and possession of the animal to that party. • Finally, practitioners should be aware that they specifically need to request a court, in issuing a divorce judgment, to modify or override a previously granted restraining order.

14. Remember to modify the order if needed! • In order for the divorce judgment to modify or override the restraining order, the judgment must articulate this specifically. • The court is unlikely to modify or override the restraining order unless specifically asked to do so by a party to the divorce hearing. • If the divorce judgment and restraining order are inconsistent, the restraining order will take precedence. Commonwealth v. Rauseo, 740 N.E.2d 1053, 1061–62 (Mass. App. Ct. 2001).

15. Problem 3: What is a “domesticated animal”?

16. Problem 3: Domesticated Animal? • Chief Justice of the Trial Court Robert A. Mulligan issued a memorandum on October 31, 2012 stating, “there is no definition for domesticated animal contained in Chapter 193 that is applicable to new Section 11.”

17. Solution: Case Law, Statutes, Regs • 8 MA Code and Regs • 5 MA cases • 4 Fed Regs • 35 cases outside of MA • But it probably just means “pet.”…..

18. So what is a pet? • Pet - a domesticated animal of a species that is commonly kept as a household pet in the community. A cat, dog, gerbil, or hamster is an example of a domesticated animal which is commonly kept as a household pet. A monkey or snake is an example of an animal which is not commonly kept as a household pet in the community. A service animal which is specially trained to assist an individual with a disability in specific activities of daily living (for example, a dog guiding individuals with impaired vision or alerting individuals with impaired hearing) is not considered a pet for which permission to keep is required when it is kept in a safe and sanitary manner by an individual with a disability to whom the animal gives necessary assistance in activities of daily living; a service animal shall be considered a pet in computing the number of pets kept. Caged birds, which are not unreasonably noisy, or fish in tanks are not considered pets for which permission to keep is required. • 760 Mass. Code Regs. 6.03

19. Commonwealth v. Flynn, 188 N.E. 627 (Mass. 1934) • “The words ‘domestic animals’ and ‘any domesticated animal’ are not technical words or words which ‘have acquired a peculiar and appropriate meaning in law’ and they are therefore to be ‘construed according to the common and approved usage of the language.’... In ordinary speech, sanctioned as well by the dictionaries, the word ‘domestic’ means belonging to the home or household and the word ‘domesticated’ means made domestic or converted to domestic use. Where descriptive of the word ‘animals’ they in general usage carry the meaning of tamed, associated with family life, accustomed to live in or near the habitations of men.” Id. at 629.

20. Yes Maybe? In short: Domesticated animal… No

21. Recap: What will judges find persuasive? • 3 Problems • Lack of Judicial Treatment • Implications in Divorce • What is a domesticated animal? • 3 Take-Aways • Physical Harm/Threats/Stalking • Underlying facts • Most likely what you think of as a common pet.