Since deciding that I want to bring a companion animal into my life sooner rather than later, I have been doing a lot of reading about dogs in particular and pets in general. Recently I have read Kim Kavin's The Dog Merchants: Inside the Big Business of Breeders, Pet Stores, and Rescuers, Jessica Pierce's Run, Spot, Run: The Ethics of Keeping Pets, and Michael Schaffer's One Nation Under Dog: America's Love Affair With Our Dogs. I am currently in the middle of David Grimm's Citizen Canine: Our Evolving Relationship With Cats and Dogs.
In the contemporary literature on the bond between humans and their canine and feline companions, one theme that keeps popping up is that of the cat or the dog as a member of the family and as a child of sorts. (I hesitate to refer to dogs and cats as "surrogate children" as most pet parents, I suspect, either already have human children as well or have no desire for them. Some may want human children in addition to a "critter child." The animals are not, in the vast majority of situations, replacing human children for people that would like to have them and do not. They are coming to live with people who want an animal. That is certainly the case for me.) As one might expect for these creatures which have increasingly come to be regarded as fully fledged family members, their legal status is in the process of evolving in interesting ways. One way in which this is occurring involves custody disputes over animals as well as talk of animal "guardianship" as opposed to "ownership."
The more I have thought about the idea of domestic animals having human legal guardians (as opposed to owners), the more I like it. I find it appropriate for all of the same reasons that I find the concept of the custodial guardianship of human children and adults with disabilities to be wildly inappropriate. Namely, unlike the vast majority of human youth and adults with disabilities subjected to custodial arrangements, dogs, cats, and other domestic animals cannot talk (or type or use sign language or point at a letter board or communicate linguistically in other ways).
When I read about a judge having to decide who gets custody of a dog in a divorce case, it makes sense that the judge makes his decision by hiring an animal behavior expert who then proceeds to visit the homes of the two individuals seeking custody of the dog to gain a sense of where the dog would fare better. (This actually happened in an animal custody case in California in 1994.) It is up to a human to decide what is in the dog's best interest because unfortunately the dog cannot speak to us and say "I would like to live with Linda instead of Stanley."
However, what is puzzling is that the law essentially treats the issue almost exactly the same in situations in which human children are involved. There should be no need for a court to assign custody of a child that is capable of making their own wishes known. Perhaps there may be a need for a court to step in and make sure that the child is aware of what all of her options are and to make sure that one parent doesn't prevent her from having a relationship with another non-abusive parent, but it is rather ridiculous that we treat the children so similarly to the dogs when, unlike the dogs, they are actually capable of verbally expressing their feelings about the matter at hand.
Guardianship is an appropriate institution for domestic animals which cannot speak to us and make their preferences known on where they would like to live, who they would like to live with, what they would prefer to eat, what sorts of elective medical procedures they do and do not want, how they wish to be cared for when they are sick, whether or not they would like to breed, and other such matters. It is up to humans to think rigorously about these issues so that we can truly be said to be acting in the best interests of our animals and not simply doing what is convenient for us or seen as more socially acceptable at any given point in time. Because our dogs and cats cannot tell us "I deeply value the experience of motherhood and I don't want to be spayed" or "It is important for me to spend time outdoors in order to fulfill my species specific functions" or "I am in a lot of pain so please take me to the vet" it's up to us to figure out what is in their best interests and attempt to provide them with lives in which they can flourish. So many dog and cat owners lament "If only my animal could talk..."
And yet young people can talk but we so frequently treat them as if what they have to say does not matter that we appear not to value their ability to communicate with us. Young people can tell us "I don't trust that person" or "I would rather attend this school than that school" or "This is where I want to live" or "This is who I want to live with" or "This is what I enjoy doing" or "I don't like this." It is time that our laws and our society at large stops treating young people the same way that we treat animals which cannot speak to us and express themselves linguistically. The same institution that is appropriate for a non-speaking animal is not appropriate for a human being of any age or developmental stage capable of expressing themselves linguistically.
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| One can talk (or will be able to very soon). The other cannot. This should make a difference in terms of how they are treated in law and custom. It does not make a difference in their respective levels of adorability as both are gratuitously precious. |
