Kona and Mr. Bear: A tale of a Nasty Divorce and Pet Visitation Rights in Washington State


We now have the story of two dogs, Kona and Mr. Bear, and the acrimonious custody fight in Clark County between the divorced couple who had them as part of their household.

A lot of words have been exchanged. There were 551 pages of filings sent up to the state's Court of Appeals.

In the end, on Oct. 4, the court decided Mariah Thomas, of La Center in Southwest Washington, was out of luck. The court reversed a Superior Court ruling giving her visitation rights with the two "babies," as the court noted both parties called the canines.

"It's devastating. They're like your children," she says.

Bottom line from the three judges: In this state, pets are property, and you don't get the right to visit property.

Pay attention, you couples sharing that dog or cat when life is all cuddles and cute texts.

What happens when the cuddles end and the texts turn vitriolic, and you decide to go your separate ways?

It can get nasty in this age when 71% of millennial pet owners (those ages 25-40) consider their pet to be their "starter child," according to a January 2020 Harris Poll done for TD Ameritrade, the online broker.

As Elizabeth Lindsey, an Atlanta lawyer who's president of the American Academy of Matrimonial Lawyers, explains in an email, "So plan ahead for what ownership will be, what 'custodial' time will be ... This can be addressed by contract in a prenuptial agreement."

Otherwise, maybe you'll be pondering life without your Kona and Mr. Bear.

Because of the pandemic, says Lindsey, she expects pet litigation to rise, a combination of cats and dogs becoming "great companions" in this time of isolation, but also marriages going sour.

Perhaps it's because 24/7 with a dog doesn't get on your nerves as much as 24/7 with a spouse.

French fries and dog biscuits

Kona and Mr. Bear had been living with Thomas' former husband, Doug Niemi, of Washougal, ever since she moved out in 2018 after 27 years of marriage.

"These dogs were my emotional support animals, my companions," says Thomas. "These dogs have a right to see me. We need to have the laws changed. They're not a car, spoon or sofa. But in the eyes of the law, that's what they are. It treats them like inanimate objects."

On a recent evening, she is saying all this as she talks on her cellphone while on one of her visits with the dogs — visits that are expected to end soon. As she's driving around the back roads in the Washougal area, the two dogs doing what they like doing on drives. Sticking their heads out the window.

Until the appeals court reversal filters back down to Superior Court, her former husband is abiding by the original divorce decree.

Besides splitting up the finances, the Superior Court awarded Thomas visitation with the dogs for three hours on Wednesdays, Fridays and Saturdays, beginning at 5:45 p.m.

How cold did things get between the couple?

They never talk to each other during the pickups and drop-offs. Thomas texts Niemi that she has arrived and he lets the dogs out in the backyard. And vice-versa.

On this evening, she has driven straight from her job as nursing case manager at a Vancouver hospital to Washougal so as not to miss any minute of the three hours.

"I take them to Burgerville, get French fries and dog biscuits (given out by the hamburger joint). They get very excited. We go to Starbucks, they get a Puppaccino. They love the whipped cream," says Thomas.

Thomas estimates she's spent $7,000 or more in attorney fees in the appeal, and Niemi's attorney says appeals fees for his client "were substantial." Niemi, whose LinkedIn profile lists him as a fleet maintenance professional, declined to be interviewed.

In the appeal, the court acknowledged the couple "texted each other regularly about the dogs' sleep schedules, grooming, behavior training, exercise and social outings."

But, said the court, the dogs could not be considered under child custody statutes.

"To the contrary, our courts historically and consistently have characterized animals, even family pets, as personal property," said the court.

And, it said, the dogs were Niemi's property and in a divorce, state law "contains no provision for pet visitation."

The marriage produced two adult children, the human kind.

The dogs had essentially become their new children.

Kona, a labradoodle (mix of Labrador retriever and poodle) and Mr. Bear, a goldendoodle (mix of golden retriever and poodle) came into the lives of the couple as puppies about two years before Thomas moved out.

As the couple's marriage hit the skids, Thomas moved from the family home into an RV about an hour's drive away. She's now bought a home.

After the separation, in an informal arrangement, the dogs continued living with Niemi, and Thomas would visit them several times a week and sometimes even take them to her RV park.

In the divorce proceedings, Thomas asked for a court order specifying she could visit the dogs.

"I need to see them; they need to see me. Mr. Niemi agrees I'm emotionally attached to them. I don't really trust that he'll let me see them without a court order," she testified.

In the proceedings, Niemi said he was willing to let his former wife see the dogs. "It just needs to be on a little more limited basis."

But then came the Superior Court decision specifically mandating visitations on Wednesdays, Fridays and Saturdays.

Niemi appealed.

In an email, his attorney, James Marston, of Camas, says, "Mr. Niemi understandably felt that he had to bear down hard on this problem."

Marston says that visits, "52 weeks a year, to his property by an ex-wife with whom he does not especially get along," had been "oppressive from the beginning."

Now, says the attorney, "More than a year and a half following the divorce, Mr. Niemi is finally free to take a vacation and generally plan his evenings three days a week as suits him rather than as dictated by a court order for visitation of the dogs awarded to him in the divorce decree."

Pets in the courts

Marston says that in researching, he's quite certain this is the first time a pet custody case has reached this high up in the state courts.

This was an important enough case that it drew the attention of the California-based Animal Legal Defense Fund., which filed a friend of the court brief with the Washington appeals court.

The brief argued that companion animals are "sentient beings who are capable of forming strong two-way emotional bonds that a large majority of Americans describe as familial."

The brief even quoted the late Stephen Hawking that "non-human animals" have the "neurological substrates that generate consciousness."

It noted that three states have acknowledged how important pets have become to us. Alaska, Illinois and California have passed legislation authorizing judges to order joint ownership of companion animals.

And in Spain, a "pioneering" court ruling issued Oct. 7 by a Madrid judge granted a couple joint custody over Panda, a border collie they shared while living together for 20 months, reported RTVE, the country's public radio and TV service. Among evidence at the trial were photos in which "the three are seen as a family, exactly the same as if it were a family photo with children," said a lawyer for an animal-right law firm.

Thomas' attorney is Adam Karp, of Bellingham, who specializes in animal law. He has gained prominence with cases such as the $100,000 settlement in 2016 for a dog owner whose Chucky the spaniel was shot to death by a neighbor in the Tri-Cities.

Karp's brief included reference to news stories about how Seattle has  and how "it is increasingly customary for couples to choose not to have children at all, instead building their families around nonhuman companions."

Karp says his client is deciding whether to take the case to the state Supreme Court.

Marston says that now an informal pet visitation arrangement in this case is very unlikely.

"Mr. Niemi has found all forms of communication with his ex-wife following the divorce to be an aggravation," he says.

For now, Thomas says she waits for the inevitable while she, Kona and Mr. Bear drive around.

"We chat, we listen to music," says Thomas.

Every time she drops them off after a visit, "I wonder if this is it. I'll never see them again."