Pet Custody Comes to Illinois

Companion animals play an ever-increasing role in American society.  US pet industry expenditures were $38.5 billion in 2006 and nearly doubled to $66.75 billion in 2016.  According to the 2017-2018 APPA National Pet Owners Survey, 68% of US households own a pet, equating to 84.6 million homes.

The strong emotional bond that binds people to their pets is undeniable, and it is a bond that courts and legislatures throughout the country are increasingly recognizing.  California Supreme Court Justice Arabian, in his dissenting opinion in Nahrsted v. Lakeside Village Condominium Ass’n, 8 Cal. 4th 361, 390 (1994), summarized it as follows:

The value of pets in daily life is a matter of common knowledge and understanding as well as extensive documentation.  People of all ages, but particularly the elderly and the young, enjoy their companionship . . . Animals provide comfort at the death of a family member or dear friend, and for the lonely can offer a reason for living when life seems to have lost its meaning . . . Families benefit from the experience of sharing that having a pet encourages.

 Until recently, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) has been silent as to specific references to pets, and they were allocated as personal property in a divorce, just like the furniture, automobiles and appliances of a marriage.  On August 25, 2017, Illinois Governor Bruce Rauner signed into law, Public Act 100-0422 (the “Act”), which makes provisions in the IMDMA for the allocation of possession and responsibility for companion animals jointly owned by parties in a divorce proceeding.  Public Act 100-0422 becomes effective January 1, 2018.

The Illinois Legislature will now also take a step toward recognizing the unique value of pets.  While the Act does not use the words “custody” or “best interests” in referring to the allocation of pets, and the language still refers to them as “assets” and makes reference to ownership, consideration for the welfare of the animals will now be codified in the statute, which reads:

In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.

Public Act 100-0422 at Sections 501(f) and 503(n). (Emphasis added.)

In other words, the court is now required to consider the pet’s “well-being”, which is a significant departure from the way all other property is treated under the law.  For instance, courts do not consider which party will get more regular oil changes when it allocates a car, or who rinses the dishes more thoroughly when allocating a dishwasher.

While the Act exclusively deals with “companion animals,” it does not define them.  However, since it exempts service animals as defined under the Humane Care for Animals Act (510 ILCS 70/1 et seq.)  (“HCAA”), the HCAA’s definition of a “companion animal” should be considered.  Specifically, the companion animal is “an animal that is commonly considered to be, or is conserved by the owner to be, a pet.  ‘Companion animal,’ includes, but is not limited to canines, felines, and equines.”  510 ILCS 70/2.01a.

Parties who are contemplating divorce should be prepared if possession of the family pet may be contested in the divorce proceeding.  Ownership/adoption papers and registrations should be maintained indicating which spouse acquired the pet and also which spouse primarily cared for the pet.  Relevant issues to consider may include which spouse takes the pet to veterinary visits, training classes and who makes arrangements for pet care during vacations since that spouse may have an advantage in establishing herself as the primary caretaker of the pet.  Therefore, maintaining veterinary receipts, health records and training records may provide important documentary evidence.

While the Act seeks to have courts consider the welfare of pets in their allocation decisions, it will be interesting to see how courts will rule with respect to valuable companion animals, such as horses, which can be worth substantial amounts of money, and show dogs and cats.

If you think the ownership or possession of your companion animal will be contested in your divorce, you should seek an attorney who is experienced and knowledgeable in family law and raise the issue early to best position your case for ownership in the dispute.

 

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Virginia Bill Would Decriminalize Sex Outside of Marriage

virginia is for loversVirginia is for Lovers?

The State of Virginia currently has an antiquated statute on its books that makes it a misdemeanor to engage in sexual intercourse outside of marriage.  Conviction of fornication carries with it a $250 fine.  It states as follows:

§ 18.2-344. Fornication.  Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.

On January 8, 2014, Delegate Mark Sickles (D) introduced Virginia House Bill 914 which would repeal the crime of fornication entirely, of which eight people were convicted in 2013, according to the Virginian-Pilot.

Unfortunately, HB 914 has stalled out in the Virginia House and is tabled for this session due to loopholes in changes to other crimes included in the bill, including other sex crimes.

Morality laws continue to be a hot topic in the state who bills itself as  “Virginia is for Lovers.” Adultery also is a misdemeanor in the state, and carries a $250 fine.

Same-Sex Marriage in Illinois

By Erika N. Chen-Walsh

On February 8, 2012, Illinois Representatives Greg Harris, Deborah Mell, Kelly M. Cassidy , and Ann Williams introduced an historic bill, House Bill 5170, entitled the Religious Freedom and Marriage Fairness Act (“HB 5170”).

HB5170 seeks to amend 750 ILCS 75/1 et seq., otherwise known as the Religious Freedom Protection and Civil Union Act (the “Civil Union Act”), which became effective on June 1, 2011.  The Civil Union Act created a new form of legalized relationship in Illinois for which both opposite-sex and same-sex couples were eligible.

Illinois residents should support the passage of HB 5170 into law.  Opponents of same sex marriage argue that marriage should be reserved for heterosexual couples and that the creation of civil union creates a separate, but virtually equal unionization for same sex couples.  History and case law have demonstrated that there is no such thing as separate but equal.  In its holding that the segregation of school children based on race was an unconstitutional violation of the Equal Protection clause, the U.S. Supreme Court held that:

 Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. . .To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
Brown v. Bd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 493-94, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955) (internal citations omitted).As I have written previously, there is no meaningful distinction between discrimination based on race and discrimination based on sexual orientation.  When equal protection can be denied to one group of people based on discrimination, all of our rights are in jeopardy.Illinois residents should applaud the representatives that introduced HB 5170 and should contact their own representatives and encourage them to support equal protection under the law.

The full text of HB 5170 can be reviewed here:  http://www.ilga.gov/legislation/fulltext.asp?DocName=09700HB5170lv&SessionID=84&GA=97&DocTypeID=HB&DocNum=5170&print=true.

The full text of the Civil Union Act can be reviewed here:  http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3294&ChapterID=59.

Loving v. Virginia and Thoughts on Gay Marriage

By Erika N. Chen-Walsh

In June 1958, Mildred Jeter, a black woman, married Richard Loving, a white man.  Although the newlyweds were residents of Virginia, they married in the District of Columbia because Virginia had a criminal statute that prohibited interracial marriages between a white person and a person of color in addition to a statutory provision that rendered all such marriages void under the law.

Upon their return to Virginia, the Lovings received a grand jury indictment to which they plead guilty and were each sentenced to one year in prison.  Their sentences were stayed upon the condition that they left the state of Virginia, never to return.  The Lovings moved to the District of Columbia, and in 1963, they filed a motion to vacate the trial court judgment and to set aside the sentences under the Fourteenth Amendment.

The Virginia Supreme Court upheld the constitutionality of the antimiscegenation statutes and upheld the convictions.  The Lovings appealed to the U.S. Supreme Court, which forever changed history when it held as follows:

Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.  To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.


Loving v. Virginia
, 388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010 (1967) (Internal citations omitted).

Sadly, here we are in 2012, and same sex marriage is legal in only six states and the District of Columbia (as well as the Coquille Indian Tribe, and the Suquamish Indian Tribe).  There is no meaningful distinction between race discrimination and discrimination based on sexual orientation.

In 1996, then President William Jefferson Clinton signed the Defense of Marriage Act which states in pertinent part that, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The arguments in favor of same sex marriage are overwhelming.  It is impermissibly discriminatory to allow religious dogma to deny legal rights that our Supreme Court has already held are “fundamental.”  It further seeks to impose religious tenets on all Americans in violation of our rights to reject them.

Allowing same sex marriage does nothing to undermine or diminish the value or sanctity of marriage between heterosexual couples.  To the contrary, establishing and promoting family bonds helps society.

Marriage is an institution that is not only a fundamental freedom on a personal level, it is also a societal institution that helps to strengthen communities, providing in-home caregivers to the infirm, providing family units to share financial obligations and income, and providing two parent households to support children.  These benefits to society are not dependent upon sexual orientation.

In addition, the legalization of same sex marriage would provide an economic boost to the economy. In 2004, a study (.pdf) conducted by the Congressional Budget Office found that if all 50 states and the federal government extended the rights and obligations of marriage to same-sex couples, gay weddings alone would generate almost $1 billion in revenue each year.

2011 Gallup poll suggests that 25% of Americans are gay or lesbian.  Religious dogma and bigotry cannot be allowed to deprive 25% of Americans a fundamental freedom.    Those opposed to big government, intrusive government, should support gay marriage because the government has no place in the most personal  relationships of its citizens.  Individuals decide what their families look like and the state has no business interfering with the Due Process Rights and fundamental freedoms of consenting adults.

On this Valentine’s Day, I encourage you to follow the Loving  decision and support same sex marriage.  When fundamental rights can be denied to one class of people based on discrimination, all of our rights are in jeopardy.