Texas Fauna Project

TRANSCRIPT

INTERVIEWEE: Mary Evelyn McNamara

INTERVIEWER: David Todd

DATE: November 25, 2024

LOCATION: Austin, Texas

SOURCE MEDIA: M4A, MP3 audio files

TRANSCRIPTION: Trint, David Todd

REEL: 4214

FILE: Dog_McNamara_MaryEvelyn_AustinTX_22November2024_Reel4214.mp3

 

David Todd [00:00:02] Well, good morning. I am David Todd, and I have the great privilege of being here with Mary Evelyn McNamara. And with her permission, we plan on recording this interview for research and educational work on behalf of a non-profit group called the Conservation History Association of Texas, and for a book and a website for Texas A&M University Press, and finally, for an archive at the Briscoe Center for American History, which is at the University of Texas at Austin.

 

David Todd [00:00:34] And I want to stress that she would have all equal rights to use this recording as she sees fit. And before we went any further, I wanted to make sure that arrangement’s good with Ms. McNamara.

 

Mary Evelyn McNamara [00:00:47] Yes.

 

David Todd [00:00:48] Well, good. All right. Well, in that case, let’s get started.

 

David Todd [00:00:53] It is Friday, November 22nd, 2024. It’s about 9:15 A.M., Central Time. As I said, my name is David Todd. I am representing this non-profit, the Conservation History Association of Texas, and I am in Austin. And we are conducting a remote interview with Mary Evelyn McNamara, who is also based in the Austin area, I believe. Is that correct?

 

Mary Evelyn McNamara [00:01:18] Yes, that is correct.

 

David Todd [00:01:19] All right. Good.

 

David Todd [00:01:21] Ms. McNamara is an attorney who practices in the family law field. She focuses on divorces, premarital agreements, child custody and property issues. And as an interesting part of her practice, she has helped understand and resolve disputes over the ownership and custody of couples’ dogs, cats and other kinds of pets.

 

David Todd [00:01:47] And so today, I thought we would talk about Mrs. McNamara’s life and career to date and focus on what she can tell us about our legal relationships with family pets, much of which she describes in more detail in an October 2021 Texas Bar Journal article, which is entitled “Pets in Family Law: Who Gets the Dog in a Divorce?”

 

David Todd [00:02:15] So, with that little introduction, I wanted to thank Mrs. McNamara for spending time with us and then just ask some questions of her and see what, what, where this might take us.

 

David Todd [00:02:28] So, I thought that as a place to start, we might ask you if there are any people or events in your childhood you might want to mention that led you to a career in the law and also maybe touched off an interest in pets and animals.

 

Mary Evelyn McNamara [00:02:45] So, when I was growing up, my family always had pets. I remember there was a basset hound in the family when I was born, and I loved and love having pets. I was also around cattle and in the country from a very young age at my maternal grandmother’s place that we would visit frequently in northeast Texas.

 

Mary Evelyn McNamara [00:03:12] I had a childhood dream of being a veterinarian and loved James Herriot’s books about being a veterinarian in rural England, “All Creatures Great and Small” and “All Things Bright and Beautiful”. So, I had a plan to become a veterinarian. But, in college I found that I was much more suited to English and history classes than hard sciences. And so, that dream did not take place.

 

Mary Evelyn McNamara [00:03:48] But I think in retrospect, everything worked out just as it should have.

 

David Todd [00:03:55] It’s hard to plan things. Sometimes we back into them.

 

David Todd [00:03:59] So do you recall some of your first exposures to animals? It sounds like you had a basset hound in your home and then cattle maybe later on in life. Any other sort of early encounters with creatures?

 

Mary Evelyn McNamara [00:04:18] Well, my mother. I’m sorry to interrupt you. My mother tells the story of me being two years old, sitting on the curb in front of our house with two neighborhood dogs that I had my arms around on either side of me.

 

Mary Evelyn McNamara [00:04:36] We also almost always had cats when I was growing up. We had a dog occasionally, but mainly cats. And I have three cats now. And I must tell you, I can’t imagine what life would be without having pets. They’re very enriching in my life.

 

David Todd [00:05:03] And it sounds like you had a lot of actual contact with animals, but were there any sort of items in the media? And I’m thinking about books, TV shows, movies. I mean, you mentioned James Herriot’s book about All Creatures Great and Small. Were there other sorts of items that helped introduce you to animals and our life with them?

 

Mary Evelyn McNamara [00:05:27] No. Nothing comes to mind right now. I know that, gosh, growing up, I knew many girls who read books about horses and watched movies about horses. But I really, with my dream of being a veterinarian, I was more focused in that direction.

 

David Todd [00:05:54] Okay. And then I guess another question. Were there any experiences in school, either with teachers or classmates that might have also sort of tickled your interest in animals and maybe suggested where you might go in your later life?

 

Mary Evelyn McNamara [00:06:13] Well, I was raised in a family with an emphasis on respect for nature. And one of my favorite experiences when I was in elementary school was the annual field trips to a nature center. I very much enjoyed that and learning about different animals and trees and plants.

 

Mary Evelyn McNamara [00:06:43] And something else that was not a field trip, but was a huge part of my life, starting in sixth grade, is that although I’m originally from Houston, my family moved to Knoxville, Tennessee when I was in sixth grade. And that’s right by the Great Smoky Mountains National Park.

 

Mary Evelyn McNamara [00:07:07] And we went frequently to go hiking in the park, and that expanded my horizons. I had never been around mountains like that, and it gave me a just a deeper exposure to nature. The animals that are, I would say, most famous in the Smoky Mountains are the black bears. Now, you don’t want to get to be real close friends with them, and they don’t want to be close friends with you. But seeing the black bears, for example, seeing a mama bear bark at her cubs to say, go up a tree because there are people nearby, those kinds of exposures were just, just wonderful.

 

David Todd [00:08:02] That’s great. Well, so we all grow up and some of us get a job. Some of us actually go into the law. And I was wondering how you came to practice family law.

 

Mary Evelyn McNamara [00:08:18] Well, I will try not to tell a super-long story about this, but even getting into the field of law was by accident. When I graduated from college, I moved back to Texas and needed a job. It was 1986 in Austin and the economy was terrible. I got a job as the receptionist at a law firm and ended up working there for 13 years, ten of which I was a paralegal.

 

Mary Evelyn McNamara [00:08:55] And it seeped into my bones so much that I decided to go to law school and was fortunate enough to go to U.T.

 

Mary Evelyn McNamara [00:09:06] I didn’t exactly know what kind of law I wanted to practice, but I knew that I wanted to work with people, to represent people.

 

Mary Evelyn McNamara [00:09:19] Again, by accident, I was going to start at a law firm in Austin and it had recently merged with another firm. And then it had a family law group because of that merger. I had met the head of the family law group before and she said she needed help. So, that was in September of 2004. Her name is Rikky Rivers.

 

Mary Evelyn McNamara [00:09:51] And in March of 2011, Rikky and I formed our own firm, Rivers McNamara. We’ve been working together for 20 years.

 

Mary Evelyn McNamara [00:10:03] And so, that’s how I got into family law. It was not a plan at all. But it is exactly where I find that I am fulfilled in the practice of law.

 

David Todd [00:10:20] Can you maybe give us some insight into what it is about the family law (which I know can be very contentious and personal and emotional and rough; I mean, it’s not an easy practice from my vantage point on the outside), how do you find it’s interesting and satisfying? Are there some things that really pop out for you, this kind of practice?

 

Mary Evelyn McNamara [00:10:48] Yes. Three main areas. One. Yes, it is, it can be contentious. It is a, it can be a stressful practice because I am working with people who, for the most part, are going through what may be the worst experience in their lives, the death of a relationship, the fears about what it’s going to look like with time with their children, fears about what is the economic future going to look like? There’s much fear and uncertainty for people who are going through a divorce and child custody cases.

 

Mary Evelyn McNamara [00:11:40] At the same time, I have the good fortune of people who are inviting me into their lives at the most difficult time. And what I hope is that I have helped them be set up for success after the case is over. That’s one reason. That’s the primary reason.

 

Mary Evelyn McNamara [00:12:11] Another reason is that family law brings in many different areas. You have property issues. You have issues about children. You’re seeing what makes people tick.  Why are these people in this circumstance? What led them to be in this circumstance? And how can we help them again be successful in the future?

 

Mary Evelyn McNamara [00:12:43] I deal with businesses. I bring in business lawyers to help out with businesses. I deal with real estate issues. A family law case can be especially legally complex. Of course, not all of them are. But that is fascinating to me, as well as wrestling with legal issues.

 

Mary Evelyn McNamara [00:13:09] A third reason I love family law is that I am fortunate to have a great group of collegial family lawyers in Austin. We have a great family bar and that makes the work that much more satisfying. We also have a great group of judges in Austin.

 

Mary Evelyn McNamara [00:13:34] Now I practice really up and down I-35 from Williamson County down to Hayes County. That’s my general area. But in this whole area, we are fortunate to have a great bar and a great bench.

 

David Todd [00:13:53] Yeah, I bet that helps a lot to know that there are people that speak your language and, you know, are supportive and helpful.

 

David Todd [00:14:03] So, you know, as you said there there’re aspects of, you know, property, real estate, business, and, you know, of course, all the personal relationship issues. And then within all that, you’ve learned about the area of family law that pertains to companion animals. And I’m wondering how you first became interested in that niche. And then, I guess as a related question, how your bar article came about.

 

Mary Evelyn McNamara [00:14:39] So, I am a member of the Barbara Jordan American Inn of Court. The American Inns of Court system, group of organizations, was established a few decades back in the United States modeling the English Inns of Court system in which colleagues would, in ancient times, live together and dine together and have wonderful opportunities for mentoring relationships in the English Inn of Court system.

 

Mary Evelyn McNamara [00:15:20] And in the Barbara Jordan Inn of Court, we present programs. We’re on teams and present programs each year. And my team, a few years back, was presenting on legal issues regarding animals. My part, unsurprisingly, was to talk about pets and family law. In that Inn was someone who was on the State Bar Journal editorial board. And he told me they were going to have a Bar Journal issue about pets, about animals, and would I take my portion of that presentation and write an article about pets and family law in Texas? So, that is how that came about.

 

David Todd [00:16:22] Okay. Well, that’s good. So, I guess this program became an article and ended up in my mailbox, and I learned a great deal from it. And I thought maybe we could walk through some of the points that you raise in your article and maybe as a place to start, I’d appreciate it if you might lay out the origin of the view that dogs, and I guess pets by extrapolation, are personal property, which I guess goes back to an 1897 Supreme Court ruling. Is that right?

 

Mary Evelyn McNamara [00:17:00] Yes. And full disclosure, I had to go back and review that for our interview. I don’t walk around with this just memorized in my head. But this was the case of Sentell versus New Orleans and Carrollton Railroad Company. And in the Sentell case, unfortunate circumstances, a railroad was sued for damages after a dog was run over by a train.

 

Mary Evelyn McNamara [00:17:29] And the issue was whether a pet, as personal property, had value in such a claim. And so, there was a determination that the dog is personal property, and then from there, personal property does have value. What kind of value would this dog have?

 

Mary Evelyn McNamara [00:17:53] It’s also interesting going back and looking at the case that the opinion included that while the higher breeds of dog rank among the noblest representatives of the animal kingdom, other dogs are little better than a public nuisance. So, even in 1897, the U.S. Supreme Court recognized that pets have an intrinsic value that that cannot be determined economically.

 

David Todd [00:18:34] That’s so interesting that by sort of categorizing higher and lower breeds, and nobler and maybe the nuisance category of dogs, they’re already saying that there was something beyond just the fact that they were property but that there was some sort of, I don’t know, a harder to define, more subjective aspect to them.

 

Mary Evelyn McNamara [00:18:57] Yes. Yes.

 

David Todd [00:19:01] Well, let’s move to Texas now. I understand that in 1981, there was a ruling, Arrington versus Arrington, that, I guess, sort of fleshed out the situation here in the state about dogs being personal property. And I think it went on to talk about this idea of a managing conservatorship, which I guess would not apply because it was a property item. Is that fair to say? Can you kind of flesh that out for us?

 

Mary Evelyn McNamara [00:19:36] Sure. And I know we’ll be touching on this a bit more, but under Texas law, for children, one of the elements in child custody is called conservatorship. That is decision-making for a child.

 

Mary Evelyn McNamara [00:19:59] In the Arrington case, which was pretty unusual more than 40 years ago, one of the parties was asking to be appointed managing conservator of their dog.

 

Mary Evelyn McNamara [00:20:15] Now, in all of these cases, an overarching theme is these people who have disputes over their pets do not have any children. I have not seen a case where people had a dispute over a pet in which they also had children.

 

Mary Evelyn McNamara [00:20:31] But essentially the court said, because a pet is personal property, truly taken to its extreme, is like a chair. Because a pet is personal property, there cannot be an appointment of a decision-maker for that pet.

 

Mary Evelyn McNamara [00:20:59] What the court can do is determine whether it’s separate property, that is, acquired before marriage or by gift or inheritance, or whether it’s community property acquired during marriage, and if it has value, dollar value.

 

Mary Evelyn McNamara [00:21:18] It’d be like, did I own this chair before I got married? Is it an antique chair, or is it a piece from Goodwill that I got for ten bucks? I mean, that’s really, at its distillation, what a court is able to do in Texas regarding pets.

 

David Todd [00:21:40] Okay. Well, and it sounds like in the wake of that decision, there have been a series of Texas appellate rulings about pets that figure into divorces. And I gather the courts have considered the fate of several dogs that you mentioned in your article – Bonnie Lou, (I love these names – Bonnie Lou), Clementine, Lucky, Sassy. And then a horse named, I hope I say this right, Pflamenco?

 

Mary Evelyn McNamara [00:22:14] Pflamenco. Yes. At least I think it’s Pflamenco. I haven’t talked to anybody personally involved.

 

Mary Evelyn McNamara [00:22:18] But I’ll walk through this. And as I said, in all of these cases, the people did not have children.

 

Mary Evelyn McNamara [00:22:27] And these are generally about dogs. I find it interesting. I’ve never seen a Texas divorce case that went to the appellate courts that was about a cat. So, not that people don’t have disputes over cats, but these cases, because they are appellate cases, were decided at at least two levels – one in a trial court and then two, by a court of appeals. So, that’s a lot of time and effort for someone to have a dispute over an animal.

 

Mary Evelyn McNamara [00:23:03] So, I’ll start with Bonnie Lou. Bonnie Lou was the dog from the Arrington case that we talked about that determined a pet owner in Texas cannot be appointed a conservator to make legal custody decisions. And here’s what the Court of Appeals said:

 

Mary Evelyn McNamara [00:23:23] “Bonnie Lou is a very fortunate little dog with two humans to shower upon her attentions and genuine love frequently not received by human children from their divorced parents. All too often, children of broken homes are used by their parents to vent spite on each other, or they use them as human ropes in a post-divorce tug of war. In trying to hurt each other, they often wreak immeasurable damage on the innocent pawns they profess to love. Dogs involved in divorce cases are luckier than children in divorce cases, in that they do not have to be treated as humans.

 

Mary Evelyn McNamara [00:24:01] But then they go on to say the office of managing conservator was created for the benefit of human children, not canine.

 

Mary Evelyn McNamara [00:24:09] Now, Clementine, the Chihuahua: that case was handled on one side by a colleague of mine in Austin. And these people took to trial the only issue in dispute, which was whether Clementine was community property or the wife’s separate property. The wife presented evidence that she got Clementine before marriage and paid for her. The husband appealed, and the Court of Appeals agreed with the wife that it was her separate property.

 

Mary Evelyn McNamara [00:24:52] The case of Lucky – not an aptly named dog because of what happened. And I don’t know what happened after the Court of Appeals result. But in the divorce trial, the dog Lucky was found to be the wife’s separate property. The husband appealed and both people were arguing that Lucky was his or her separate property. No one presented any separate property evidence, so they couldn’t show that they got Lucky before marriage or they paid for Lucky with some separate property funds.

 

Mary Evelyn McNamara [00:25:32] It was determined to be error to award Lucky to the wife as separate property. The Court of Appeal said because it’s community property, husband and wife each own half of Lucky. It went back to the trial judge to determine ownership of Lucky and other property issues. But I cannot imagine what fun that judge had having to determine that. I hope they figured it out. I don’t know if they did.

 

Mary Evelyn McNamara [00:26:06] So, then there was Sassy, the Pomeranian, who was awarded to the wife in the trial court. The husband had argued that the dog was his parents’ dog and appealed the case. Because the evidence was so conflicting, the Court of Appeals sent it back to the trial court to determine whether his parents owned Sassy.

 

Mary Evelyn McNamara [00:26:39] Although Pflamenco, the horse, has an interesting name, p-F-L-A-M-E-N-C-O, what happened there is the trial court awarded Pflamenco to the wife as her separate property. The husband said, “No, it’s community property.” And the Court of Appeals agreed.

 

Mary Evelyn McNamara [00:27:02] And so, again, what happens when the Court of Appeals says that the trial court was in error is that it has to go back for redetermination. So, I have to admit, for these cases in which it was sent back for redetermination, I do not know what happened in these cases. And again, I hope these people figured it out, instead of continuing to spend more money on the issue. But you can tell people can get very, very attached and wrapped up in what’s going to happen to my pet.

 

David Todd [00:27:38] That’s interesting. I think you launched into this discussion about appellate rulings just by reminding us that this may mean taking this issue to the district court, then going to the appellate court, and then you may get remanded to the district court and you’ve got to, you know, revisit all this, and the expense and the time and the emotional turmoil must be a lot. Is that fair to say?

 

Mary Evelyn McNamara [00:28:05] That is fair to say, absolutely.

 

David Todd [00:28:08] Well, I think it’d be interesting to sort of explore this not so much through the rulings, but just through the counsel that you may give patients, patients?, clients. I’m thinking about you as a vet too, so. But, you know, when clients come in and they have an issue about title to an animal and then how they’re going to work out the custody arrangements, and I know custody isn’t really the right word. The possession, visitation rights? I don’t know how to put this. But if you could walk us through some of the interesting cases that you’ve run into, I’d love to hear about them.

 

Mary Evelyn McNamara [00:28:57] Well, I will tell you, I have only had one case in which there was a question at trial about a pet, and that case ended up settling. All of the cases I have handled involving issues about pets have ended up in a settlement. I have handled cases with agreed pet custody arrangements. And I have also seen people with children agree that the family dog will go back and forth as the children do, from parent to parent, so that the children are having consistency in both homes with their pet.

 

Mary Evelyn McNamara [00:29:52] And as I mentioned, in divorce cases without children, that’s where it seems that pet ownership can be more contentious. Now, I’m not saying that happens … It doesn’t happen that often.

 

Mary Evelyn McNamara [00:30:06] But I’ve also seen the unfortunate circumstance of someone in a marriage without children being vindictive about a pet, moving out with the pet without agreement, and then not letting the other person see the pet. And, you know, in divorce cases, when emotions are high, that kind of action can be inflammatory and hurtful and can, frankly cause more problems as far as whether the case is going to be amicable.

 

Mary Evelyn McNamara [00:30:49] So, those are some of the circumstances that I have encountered.

 

David Todd [00:30:54] OK. That’s really interesting, and totally understandable about how, you know, one decision can fuel the flames that, you know, inflame other things that were not in contention and, you know, can, as you said, turn into something that’s really not amicable.

 

David Todd [00:31:16] Well, so I was wondering if some of the clients who come to your practice understand that these things can be really contentious regarding pets. And so, they enter into a prenuptial agreement about how that might be managed if they were to separate or divorce. Is that something that you’ve seen?

 

Mary Evelyn McNamara [00:31:44] You know, David, I am thrilled that you brought it up because I think it’s a great idea. I have not encountered it. The prenup sometimes can be in force for decades before parties divorce. Of course, you hope with prenups that they never have to worry about them and they stay together in perpetuity. But, in that circumstance, for example, they have a dog when they’re getting married. It could be that dog is no longer around at the time that a divorce is going to occur. But I do think it’s a great idea to include that in the menu of options for a prenuptial agreement.

 

Mary Evelyn McNamara [00:32:47] But generally, these disputes about pets are not a matter of foresight. They’re a matter of hindsight. And, of course, people go through their lives generally not planning to be divorced. And so, if an issue comes up about a pet, it tends to be when the divorce case is occurring.

 

David Todd [00:33:17] Okay. So, I think that one of the discussions in your article was about trying to determine whether an animal is community or separate property. And I was wondering if you’ve ever been involved in efforts to try to trace back, you know, purchases or inheritance, gifts that might have helped explain, you know, which category the pet might fall into – separate or community property.

 

Mary Evelyn McNamara [00:33:56] I have been involved in that. Thankfully, it wasn’t … so far, so good. Thankfully, it wasn’t disputed. It is pretty clear cut if somebody has a pet before they get married and then people are together and the marriage didn’t last that long and everybody agrees the animal was that person’s separate property.

 

Mary Evelyn McNamara [00:34:28] I haven’t specifically encountered this issue in a divorce case, but a scenario that could occur is one person says, “you gave me the dog as a birthday present.” So, that would be separate property – a gift. And the other person says, “no, we got the dog together.” And because we got the dog together during marriage, it’s community property. Those kinds of issues could arise.

 

Mary Evelyn McNamara [00:35:05] And if somebody had a birthday card that said, “I hope you enjoy Fluffy”, or something like that. That could be additional evidence to show that the dog was separate property.

 

Mary Evelyn McNamara [00:35:25] And I’m not going to go into a big old dissertation in community property and separate property. But if property is acquired during marriage, it’s presumed to be community property and you have to have what’s called “clear and convincing evidence” to demonstrate that something is separate property.

 

Mary Evelyn McNamara [00:35:51] So again, I have not encountered this in a contentious matter, but it helps me to think about this should it come up.

 

David Todd [00:36:08] Would you like to take a little nose break? It sounds like you have a little sniffle. Would that make you more comfortable?

 

Mary Evelyn McNamara [00:36:15] I think that would be good. I hadn’t been paying attention. Thank you.

 

David Todd [00:36:18] Yeah, sure, sure. I want you to be comfortable. Please.

 

Mary Evelyn McNamara [00:36:21] Okay. Just a minute.

 

David Todd [00:36:22] Yeah.

 

Mary Evelyn McNamara [00:36:26] Okay. Thank you.

 

David Todd [00:36:27] Yeah, sure.

 

David Todd [00:36:30] So, something else I thought was interesting. And of course, these are always contentious and sometimes sad situations, but they happen. And I noticed that under the Texas Family Code, it’s possible for a court to impose a protective order to protect a pet if there’s an, you know, environment of family violence. And I was wondering if you’ve ever been involved in a case like that or if you’ve known of ones where that has been an issue.

 

Mary Evelyn McNamara [00:37:08] That was one of the great legislative victories a few years back when protection of pets was added to the protective order statutes. I have handled protective orders, but I have not encountered that specific issue in a protective order case.

 

Mary Evelyn McNamara [00:37:30] Unfortunately, there are people who are cruel not only to people, but also to pets. And I’m glad this was added to the protective order statues. I wish it weren’t needed, but I’m glad it’s there.

 

David Todd [00:37:49] Yeah, the scale and variety of cruelty knows no bounds, I’m sure.

 

David Todd [00:37:59] So, you know, you’ve been practicing, as you said, I guess, with Ms. Rivers for what, 20 years? And I was wondering if you’ve seen some trends in the number or the kind of cases that you’ve seen that might involve disputes about pet care or custody or ownership. Any sort of patterns that you can relate?

 

Mary Evelyn McNamara [00:38:28] Well, something that is happening, generally, is there is a decline in the number of married people who are having children. And that can make pet ownership a larger issue. Again, these courts of appeals cases that I talked about are all cases in which the people did not have children. And so, there’s going to be, there’s the potential for pet custody, if you will, to be in dispute.

 

David Todd [00:39:16] I can see that where, you know, maybe if you have no children in the house, all that love and attention gets focused on the pet. And if you have to split, it’s a terrible blow.

 

David Todd [00:39:35] So, given that trend that, you know, maybe this is becoming more common as marriages without children become more common, have you seen more of these generic legal forms? I mean, I’ve seen them for affidavits, leases, non-disclosure agreements, contracts, wills and so on. Are you seeing anything like that for pet arrangements?

 

Mary Evelyn McNamara [00:40:03] If they exist, I don’t know about them. The legal forms, for example, in Texas, that you can get at a site called texaslawhelp.org are promulgated by the Texas Supreme Court. And there are forms for simple divorces and child custody cases, wills. I don’t see forms about pets being at the forefront of this forms database that has been created.

 

David Todd [00:40:55] Okay. So, you know, I guess you’ve helped us understand pets are considered property. And so, I gather that one of the real big questions that needs to be resolved in disputes is about a pet’s value, market value. And my understanding is that non-economic damages for pain and anguish, that sort of thing, are not available. Is that the case in Texas?

 

Mary Evelyn McNamara [00:41:35] Yes, it is.

 

David Todd [00:41:42] Can you maybe tell us if you’ve ever run into, in your own practice or heard of some of the folks in the Inn of Courts, you know, some of your colleagues, who’ve had to help a couple decide what is this priceless animal worth. It must be a contentious thing.

 

Mary Evelyn McNamara [00:42:06] I have. I have encountered that. Of course, we talked about it in the Sentell case, the United States Supreme Court comparing a noble dog to essentially a mongrel on the street. The average dog or cat in a family law case, if the issue were to be put to a judge is not going to have much value. I have a cat. I went and got it at Austin Pets Alive. Certainly not a purebred. He’s a great cat, but he’s not going to have any market value.

 

Mary Evelyn McNamara [00:42:48] Where you see people talk about what price to put on an animal I have encountered is in settlement negotiations when both people really want a pet. Is there a price that one person is willing to pay for the value of that pet? And so, I have definitely seen that. And I have encountered people agreeing to a value that certainly wouldn’t be a fair market value, but for that person was a value that was important to them to pay in the property division.

 

David Todd [00:43:43] So, I guess the values are not what would be on the market. But it’s a unique, non-fungible item. And there’s only one Fluffy.

 

Mary Evelyn McNamara [00:43:55] Right.

 

David Todd [00:43:57] How do they find that price? No comparables out there.

 

Mary Evelyn McNamara [00:44:03] Well, you’re now getting into the psychology of settlement. And one of the great benefits of settlement is the ability to think creatively, and to think outside of the box. In a case where a judge might say, you get Fluffy, but I don’t find Fluffy has any value. In settlement, if somebody really wanted Fluffy, maybe Fluffy is going to be worth a couple thousand dollars to be able to keep the animal. And one person gets Fluffy and the other person gets cash out of an account.

 

Mary Evelyn McNamara [00:44:51] So, we could go on and on about how people consider what’s important to them in settlement negotiations. But that’s generally how I’ve seen it.

 

David Todd [00:45:08] Is there a sort of aspect of extortion involved?

 

Mary Evelyn McNamara [00:45:17] One person’s extortion is another person’s compromise. I would sure not want to be found to be the family lawyer who has a reputation for getting people to engage in extortion in settlement discussions. So, I’ll just, I’ll leave it at that.

 

David Todd [00:45:38] It just seems like it is an all or nothing prospect. And I would think that it’s a very difficult thing to settle.

 

Mary Evelyn McNamara [00:45:53] It can be. It definitely can be, you know.

 

David Todd [00:45:59] Do you see any trends about, you know, what people will pay to resolve a question about ownership of the pet or access to the pet?

 

Mary Evelyn McNamara [00:46:12] I do not. I do not. Every case is different. So, the number of issues people may be talking about varies so much that it may not be a dollar value for Fluffy. It could be, “Well, if you want Fluffy, then I want that kitchen table that you also really love.” There are just so many moving parts in negotiations like that, so I can’t, I can’t put a trend on it.

 

David Todd [00:46:55] Okay. I guess every case is so distinct.

 

David Todd [00:47:01] Well, maybe we can talk about more general things. And some of this, I guess, will touch on the law about pets in other states, but I think it would help me and maybe our listeners understand a little bit about the playing field and maybe the future of of how things might be adjudicated here in Texas in the future.

 

David Todd [00:47:29] And my understanding is that Alaska, in 2016, was the first state to pass a pet custody law. And then that was followed by Illinois, California and New York, then even, I think Maine, New Hampshire, Rhode Island and Washington, D.C. And I’m wondering what do you think is sort of flipping the switch where these states are looking at animals more as companions rather than chattel?

 

Mary Evelyn McNamara [00:48:02] So, this is not an area with which I am entirely familiar. I certainly looked into this when preparing my article. There is greater advocacy for humane treatment of pets at the level that legislatures are getting involved. And then also, as I’ve said, with there being a decline in people having children in marriages. But what I’ve seen is that these legislative efforts, based on just a brief touchback into this in preparation for the interview, is they seem to have stalled out. I don’t know if that’s because of Covid or just other issues being at the forefront in various legislators.

 

Mary Evelyn McNamara [00:49:21] But even in states in which a pet is personal property, I think a judge can take into account the kinds of issues that other states are looking at. But again, it seems like this legislative effort has stalled out. It had a trend through these various states with Alaska setting the stage. But I don’t know. I don’t know exactly why it’s stalled out, but it’s just stalled out. I’d like to see that trend continue.

 

David Todd [00:50:06] Yeah, well, I guess these things move in fits and starts.

 

David Todd [00:50:13] Maybe a way to sort of understand the issues that these legislatures are dealing with, and maybe some of the advocates that are approaching the legislature have in mind, is to talk about some of the standards that are, I guess, landmarks that they’re, you know, contending with.

 

David Todd [00:50:36] And I understand that one is “the best interests of the child”. And I guess it’s kind of the rule in child custody cases. And how does that differ from how you consider a pet that’s just personal property. Can you help us understand that?

 

Mary Evelyn McNamara [00:50:57] Sure. I’ll start with “best interests of the child”. “Best interests of the child”, in a divorce or child custody case, is the overarching principle. It is a broad standard with factors including the desires of the child depending on the child’s age, the emotional and physical needs of the child now and in the future, any emotional and physical dangers of the child now and in the future, plans for the child, and the stability of homes at issue.

 

Mary Evelyn McNamara [00:51:37] You know, in raising a child you’re talking about education and moral and religious upbringing. What activities is the child going to be involved in? Bed times. What’s the child going to eat? What time does the child get up? Are these parents getting the child to school on time? Are these parents involved? Are they taking the child to the doctor? Are they meeting with teachers? I mean, there’s so much there.

 

Mary Evelyn McNamara [00:52:20] And it’s hard for a pet. The bar is just lower. The bar is lower for treating a pet decently.

 

Mary Evelyn McNamara [00:52:39] And I want to back up and say, I know we have a focus on pets, but there are a lot of people who may not be considered to be perfect who get to be parents. There are no perfect parents and there are varying levels of parenting. All of which, unless there is some sort of endangerment to the child, all of which are acceptable.

 

Mary Evelyn McNamara [00:53:14] For a pet you have, is someone providing food and adequate care for a pet, and you hope love. I mean, of course, that love for the children is incredibly important, but the “best interest of an animal” is going to be, are you, to me, if I were a judge, it is, “are you meeting a pretty low bar of being a decent pet owner?”

 

Mary Evelyn McNamara [00:53:50] I know we’ll be going into that a little bit more as far as pets. But it’s just not a universe that you apply to all of the aspects of raising a child.

 

David Todd [00:54:07] Okay. So, a higher and lower bar of more care, less care, you know, higher duty, less may be expected between the best interests of the child and the best interests of an animal.

 

David Todd [00:54:27] I understand that there’s a third standard of that, and maybe it’s now a fourth, that New York has been looking at “the best for all concerned”. And it’s kind of shifted over to something called “best interests of the pet” standard. And I’m getting confused. And I was hoping that maybe you can walk me through what the differences are there.

 

Mary Evelyn McNamara [00:54:52] So, not having practiced in New York, I am going to speak generally about this, but when I hear “best for all concerned”, I think of the focus being on not only the pet, but also the people. “Best interest of the pet” is focused on the pet, akin to best interests of the child. It’s a reminder to me that sometimes people, when they are looking at these standards, can lose sight of what the focal point is in the question.

 

Mary Evelyn McNamara [00:55:36] So if you’re talking about “best for all concerned”, one person could say, “I should have the pet because I live in a multi-million dollar house on many acres. You should not have the pet because you live in an apartment complex in the center of a city.”

 

Mary Evelyn McNamara [00:56:03] Versus “best interest of the pet”, well, maybe that person with the multi-million dollar house with lots of acres is really hardly ever home, whereas the person who lives in the apartment turns out has a great park nearby and can provide routine and good care for the pet.

 

David Todd [00:56:32] Gosh. It just gets so nuanced. I mean, you think of just all the different ways you interact with a pet.

 

David Todd [00:56:40] Well, I think this flows into this next question that I had. And, you know, as you’re saying, there just lots of duties and expectations for even what a dog or cat might be entitled to or expected to have and things like I’m thinking of whether a owner might be required to pay for a fenced yard, or for a dog walker, or for grooming, vaccinations, heartworm pills, wellness vet visits, surgery, veterinary health care. I mean, or are you seeing any of these sorts of expectations appear in how people think about what is the best interest?

 

Mary Evelyn McNamara [00:57:36] Well, economics is a factor here. Do you have someone who has the resources to expend that kind of money on a pet? Or do you have someone who really wants to have a pet but is going to be doing it on a shoestring? These are all great questions. I have not specifically encountered this, but if these issues were contested, I might want a veterinarian to testify about what is a reasonable standard of care for an animal.

 

Mary Evelyn McNamara [00:58:25] A wide variety of people get to be pet owners. One person may look down his or her nose at someone feeding a dog Purina Dog Chow, when the best food out there available is the Farmer’s Dog. But feeding a dog Purina Dog Chow is still feeding the dog.

 

Mary Evelyn McNamara [00:58:59] So the issue to me here is what is reasonable for the animal.

 

Mary Evelyn McNamara [00:59:10] I have never encountered a judge imposing any kind of duties on a pet owner. Now, I’m not saying that doesn’t exist, but I have never seen that.

 

David Todd [00:59:29] Okay. Well, I guess, you know, judges have to be respectful of what people can afford and so much of this, I guess, is just intangible. You’re talking about love and adoration and it’s hard to pin down.

 

David Todd [00:59:46] So, I think we’ve mostly been talking about animals that are companion creatures, you know, ones that are in our home, in our private residence. And but I wonder if there are issues related to the best interest of an animal that play out in pet shops, things that are not related to homes and divorces and separations, but just, you know, in this sort of mercantile world. Do you see any spillover there?

 

Mary Evelyn McNamara [01:00:26] Well, although I don’t know the law underlying it, I’ve certainly seen a change in my lifetime over how pets are sold. There’s much more of an emphasis that I’ve seen in advising people, “Why don’t you go to the shelter to get a dog, instead of paying for a dog through a breeder?”

 

Mary Evelyn McNamara [01:01:04] When I was a kid, you could walk into pretty much any Kmart and there’d be a display of puppies and kittens for sale. And I remember places like PetSmart had that, and those just generally are not done anymore. If PetSmart has a display, it’s going to be of animals through a local shelter available for adoption, highlighting those animals. So, I would say that’s a trend as far as respecting animals.

 

David Todd [01:01:45] Okay. All right. Well, it’s so interesting. I guess it’s all about norms and customs and things that maybe aren’t statutory, but just what seems seemly and what is unseemly.

 

Mary Evelyn McNamara [01:01:59] Yes.

 

David Todd [01:02:02] So, to return to the question of statutes, I was wondering if you are seeing any trends or patterns with Texas statutes about pets. I understand there were some recent animal cruelty laws passed in the state requiring licensing of large breeding operations, barring animal cruelty violators from owning non-livestock animals. Do you see some trends, some tendencies there, that tell you something about our relationship with animals?

 

Mary Evelyn McNamara [01:02:45] Well, I must tell you that I am not well-versed in this area. I do, in every legislative session, keep an eye on family law related legislation that is being proposed. And I have not, in the time I’ve been doing this, and it’s been many years, I haven’t seen any pet-related legislation in family law cases except for the statute that was passed to include protection for animals in protective orders.

 

Mary Evelyn McNamara [01:03:31] So, my best guess, and of course, I could be wrong, is that generally these types of laws are not at the forefront of the pressing issues at the Texas legislature. I mean, I’m glad to know about these statutes, but I haven’t seen it at the forefront.

 

David Todd [01:04:01] Okay. Well. So, I guess these things sort of burble up every now and then in the legislature and they’re not always top of mind. But it does seem like there’s, to me, as an outsider, it seems like there’s kind of an underlying trend or public pressure or concern that’s, you know, pressing for our representatives to try to change the way we settle disputes about pets. And I’m wondering if that’s maybe a good premise, or why that would be, you know, like the recent adoption of the ability to put a protective order in a case where there’s family violence. Do you think that there’s … you mentioned, for instance, that maybe there are more marriages without pets? Or is it because we’re living in closer quarters? You know, more of us live in apartments or, you know, really dense urban environments where, you know, the dog is inside a lot. What do you think might be behind some of this shift, if that’s something you might grant me?

 

Mary Evelyn McNamara [01:05:26] Well, when I think back to when I was a kid growing up in the ’70s, a family dog might get Alpo and an annual rabies shot. The dog was taken care of but was not pampered, at least in general with what I saw growing up.

 

Mary Evelyn McNamara [01:05:57] I think that there is a trend to put pets on a higher plane than they used to be. Thinking about big box pet stores that have come along, like Petco and PetSmart. Lots of different options for food for pets, lots of grain-free options versus the Purina Dog Chow I was referring to. I mean, there’s dog physical therapy, specialization in different kinds of veterinary care, more grooming facilities, dog massage. I mean just a more holistic approach to taking care of a pet than there used to be. I’ve even seen in veterinary care that the veterinarians are more focused these days on pain relief for pets, that they want pets to be more comfortable if they’re having pain. And I didn’t see that when I was younger.

 

Mary Evelyn McNamara [01:07:31] So there’s, I think there is a welcome trend that pets are to be to be treated well. Not everybody is in that trend, but I’ve generally seen that trend line.

 

David Todd [01:08:01] So, I know some people think Texas is its own country and that others feel like we’re not that distinct, but I was curious if you see any distinctions between various states that have different approaches to how they view owners and property or, you know, people and their companion animals. You know, is there any sort of pattern you see between those that see pets as companions and those that see them as chattels? You know, does it track as a partisan issue or a rural / urban kind of balance? Or do you see any kind of trend that you can help us discern?

 

Mary Evelyn McNamara [01:08:53] Well, I’ll start with this. Texas is its own country. Being a native Texan, I tell my husband from Iowa that nobody ever says, “don’t mess with Iowa”. So, I’ll start with that. I have that native Texan problem of not just thinking Texas is the best state, but knowing it is.

 

Mary Evelyn McNamara [01:09:16] So, when I was looking at the states that have passed some sort of pet custody legislation – California, New York, Illinois, New Hampshire. Alaska being, I think, an outlier. But these are all very blue, in the blue versus red state designations. So, I think that’s one thing.

 

Mary Evelyn McNamara [01:09:55] And then when you have the rural versus urban, I’m going to give a couple of examples of rural versus urban I have observed. Years ago, I was in Manhattan. This was 2012, and I was really surprised to see all of the dogs that had little booties and matching jackets. Now, I thought … I was stunned.

 

Mary Evelyn McNamara [01:10:32] And then you have people, someone who might have a ranch and a bunch of farm cats. I mean, the farm cats all live outside. They get fed, but they’re farm cats. And it’s just a whole different setup. So, I do think that there is a rural versus urban divide, too.

 

Mary Evelyn McNamara [01:10:57] And I’m not meaning to make light of either of those. They’re just different perspectives.

 

David Todd [01:11:08] Yeah, I guess the context of how we use or share space with animals always counts.

 

David Todd [01:11:18] Well, let’s start winding things down. I had just sort of general questions.

 

David Todd [01:11:25] Say you have a client that has pets but also has children. And I was wondering, do you see them have a similar or different attitude about the two sets of dependents they have?

 

Mary Evelyn McNamara [01:11:45] In general, what I have seen is that in families with children, they don’t tend to spend much time, if any, in disputes about pets. They are much more focused on their children’s future. That doesn’t mean it has never come up, but it’s just generally not an issue.

 

David Todd [01:12:21] Okay. So, this gets back to, I think, a question that we touched on earlier, and that has to do with how you find a value. You know, it may be market value. It may be, you know, the value of something, somebody you love. It may be sort of an ethical principle. How do you think about the value of a companion animal, an animal that’s an item of property.

 

Mary Evelyn McNamara [01:13:06] Well, thinking about my own pets, I think about how much they enrich my lives. I hope I enrich theirs. Although sometimes I think my cats just look at me as one of the people who feeds them. But so, there’s that love, of course, the love and companionship.

 

Mary Evelyn McNamara [01:13:32] But I view it as ethical. Humans domesticated animals. And domesticated animals are generally not equipped to fend for themselves in the wild. Pets depend on us. We’ve created them to depend on us. And so, we owe a duty to care for them.

 

David Todd [01:14:05] You’ve been practicing in this area for a while and I guess have bumped into these questions of pet ownership and custody. Do you find that talking to clients about these issues or, you know, dealing with these kinds of disputes about animals in people’s lives has changed your own personal attitude, just from that kind of exposure?

 

Mary Evelyn McNamara [01:14:35] Well, this is a more general answer, but it applies to the area of pets in family law cases. And that is that I have had the great fortune of listening to and learning about different perspectives from many different people over the years. And that has broadened my horizons in hearing people’s different perspectives, including different perspectives about pets.

 

Mary Evelyn McNamara [01:15:16] Not that one is right or wrong. They are, they are different.

 

David Todd [01:15:28] Well, I guess it is a pretty intimate view of people’s lives that you get access to. And so, you probably hear a lot about people’s attitudes about all kinds of things.

 

Mary Evelyn McNamara [01:15:41] I do. I do.

 

David Todd [01:15:44] Well, so, let’s hop in our time machine. And if you were coming back 50 years from now and returning to this family law practice that you have now, how do you think the situation in 2024 might compare with that in 2074?

 

Mary Evelyn McNamara [01:16:09] Hoo boy. Well, let me get my crystal ball and see what I can do here.

 

Mary Evelyn McNamara [01:16:14] I think about 1974. I was on the planet in 1974. I was ten years old. And the world has changed tremendously since then, tremendously. I do think there is this continuing, ongoing trend of pets having greater respect. And I hope that that trend continues. I couldn’t say whether 50 years from now there might be legislation in Texas about pet custody. I don’t know. But I think there are, I’d hope, there will be the continuing trend that people have greater and greater respect for pets.

 

David Todd [01:17:25] Well. Okay. Well, that’s all the sort of arsenal of questions I have for you. But I did want to just leave it open for anything you might like to add that we might have skipped over, that you feel like I gave short shrift to and that you’d like to include in this visit?

 

Mary Evelyn McNamara [01:17:51] Well, you covered it well. What I would add is that I thank you for giving me this opportunity because it helps me think more deeply about the subject of pets in family law cases.

 

David Todd [01:18:10] It’s a complicated area and I feel the same way towards you. It’s nice to be able to listen to what you’ve been seeing and understanding and learning. So, thank you very much for the time.

 

David Todd [01:18:25] I see it’s 10:30. I think you said you might have 90 minutes. So, I think we’ve run out of time and I should let you go. But thank you again. I appreciate it greatly.

 

Mary Evelyn McNamara [01:18:37] Thank you.

 

David Todd [01:18:38] All right. Take care.

 

Mary Evelyn McNamara [01:18:41] You, too.