Court’s power to award ‘joint custody’ of dog under review

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BOSTON — To a single justice of the Massachusetts Appeals Court, a trial judge had treated Teddy Bear — a Pomeranian acquired by a since-estranged unmarried couple — “as if it were the parties’ child.” Awarding them what was, in effect, joint custody was a bridge too far, she ruled.

But an attorney for the plaintiff-appellant in Lyman v. Lanser, which was argued to an Appeals Court panel on Nov. 8, insists he is seeking nothing more than a logical extension of longstanding property law.

Plaintiff Brett Lyman acquired Teddy Bear in Pelham, New Hampshire, on June 2, 2018. The pup’s full given name was “Teddy Bear Lanser-Lyman,” “Lanser” being Lyman’s girlfriend at the time, Sasha Lanser.

Lyman and Lanser broke up in the summer of 2021. But according to Lyman’s Appeals Court brief, the pair communicated regularly over the next several months about their plan to evenly split Teddy Bear’s care and companionship.

For his part, Lyman already had experience sharing possession of another Pomeranian — Zeus Bear — with a different former romantic partner and figured the arrangement with Teddy Bear would head down the same path.

But Lyman began to see his time with Teddy Bear dwindle. Then, in January 2022, he got a request from Lanser to let Teddy Bear live with her exclusively so the dog could get acclimated to her new home in Brighton.

Lyman says he agreed to the arrangement — temporarily. But by early March, he was writing to Lanser, asking to resume transferring Teddy back and forth between them.

According to Lyman, Lanser initially expressed a willingness to work something out but then stopped communicating with him. That prompted Lyman to file a complaint in Middlesex Superior Court containing claims for conversion and breach of implied contract.

Judge Shannon Frison granted Lyman a preliminary injunction, which included a provision requiring the parties to exchange Teddy Bear every two weeks.

But on Dec. 19, Appeals Court Judge Marguerite T. Grant decided that Frison had “abused her discretion and erred as a matter of law.” Grant vacated the part of the order that required the parties to alternate possession of the dog.

Lyman’s lawyer, Jeremy M. Cohen of the Swampscott-based firm Boston Dog Lawyers, says it was disheartening to see Grant reach for the child custody analogy, given how strenuously he sought to avoid drawing that parallel.

Cohen knows that he would likely get nowhere trying to place canines on the same level as human beings.

“We’re not trying to create a new legal status [for dogs],” he says.

In his specialized practice in which he handles some 30 pet ownership disputes at any one time, Cohen recognizes that he and his clients would lose credibility if they came off as too fanatical, arguing, “Dogs are people, too.”

Instead, he accepts that change will be incremental. Nonetheless, Cohen fervently believes the law needs an adjustment. The current state of the law — as seen in the Lyman case — is that a “grab-and-go mentality” carries the day too often.

“People think, ‘As long as I get possession, I’m protected,’” he says.

Indeed, Cohen says he has seen self-help efforts turn violent, with one person punching the other to snatch a pooch from the other’s clutches.

Rather than leaving them to take matters into their own hands extrajudicially, pet co-owners “need something new,” Cohen says. Lyman’s case, which involves two good dog owners who each have a relationship with Teddy Bear, even if they no longer have one with one another, should provide the Appeals Court the opportunity to say what that “something” should be.

In short, Cohen believes that Frison was well within the Superior Court’s broad equitable powers to fashion the relief she did — even as he struggles to find a less loaded term than “joint custody” to describe it.

From a legal perspective, Cohen acknowledges that his stiffest challenge may be the dearth of precedent sanctioning the sharing of personal property. Cohen points to the 1992 Massachusetts Supreme Judicial Court case Welford v. Nobrega, et al., in which the court recognized the equitable nature of co-ownership rights, ordering the parties to share the proceeds of a 1986 winning Megabucks lottery ticket worth $1.7 million.

In his brief, Lanser’s attorney, Philip A. Bongiorno of Boston, argues that ownership of a domestic pet by unmarried couples or roommates should be presumptively determined by documentary evidence of ownership — in this case, who paid for the dog.

“If the parties co-owned a dining room set together, would the Court order equitable sharing, custody, of the tables and chairs?” Bongiorno asks. “Obviously not. The fact that Teddy is alive is irrelevant to the analysis.”

Bongiorno insists that Lyman cannot prove his conversion claim, but even if he could, the remedy would not be for the court to set a custody schedule.

“The only remedy in this matter that can be ordered by Judge or Jury is possession to one or the other, or restitution to the Plaintiff for the value of the animal should conversion be found,” he writes.

Bongiorno had not responded to requests for comment as of Lawyers Weekly’s deadline.

Grant cited the 2014 Appeals Court case Irwin v. Degtiarov for the proposition that “Massachusetts law considers animals, including pet dogs, to be property.”

But Cohen counters that a closer reading of Irwin, which involved how to properly value the damages suffered by an injured dog’s owner, recognized the complexity of the task before the court, “where the property is unusual and where ordinary methods will produce a miscarriage of justice.”

Cohen writes, “It already being established law in Massachusetts that dogs are considered unusual under the law for purposes of calculating damages for their injury, it is logical to consider them unusual, in fact unique, for purposes of determining the appropriate remedy here.”

Cohen’s sense from the oral argument was that, on some level, the judges appreciated the dilemma faced by those seeking to vindicate their right, as co-owner, to continue to enjoy the relationship they had built with their pet.

Cohen hopes that the question about his client that will stick with the judges is, “Where do you want him to go to sort this out?”

“There has to be some way to resolve this,” he says.