The New York Times had a feature story recently titled, “When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.)” Normally, courts view pets as property parties divide, and the courts use rules of property, not child custody, to award a family pet to one party. But given how much attachment a pet can have to both spouses, more people have tried to litigate the issue of shared custody (or ownership) of the pet.
As the Times article notes, a survey by the American Academy of Matrimonial Lawyers found a 27 percent increase in pet custody cases for the previous five years, and that custody has involved not only traditional family pets like dogs and cats but exotic pets like parrots and iguanas.
Courts find themselves in a bind without legislative guidance because they must follow the statute, and in Missouri, we have no statute that says spouses can get custody over pets. Further, even in the property context, courts must set aside property to one spouse or the other – they cannot remain joint owners of property (unless they agree to in a settlement agreement).
In January, Alaska became the first state with an actual pet custody provision in their dissolution of marriage laws. The law defines a pet as “a vertebrate living creature maintained for companionship or pleasure, but does not include dogs primarily owned for participation in a generally accepted mushing or pulling contest or practice or animals primarily owned for participation in rodeos or stock contests.” It provides that a court may award pet custody in this fashion: “if an animal is owned, for the ownership or joint ownership of the animal, taking into consideration the well-being of the animal.” It also allows separation agreements to included provisions for joint ownership of the animal, taking into consideration the well-being of the animal. It will be relatively easy for courts to apply “well-being of the animal” in the same manner as “best interest of the child.”
States may want to expand on what Alaska allows, providing specific factors the court should consider in making the pet award, such as which spouse purchased the pet, which spouse spent more time caring for the pet, which spouse may have more of an emotional attachment to the pet, and which spouse spent more funds supporting the care of the pet.
Most of us can see that these statutes make sense for animal lovers. While a pet may not hold the same place as a child to a spouse, in some marriages, especially those with no children, the pet may be the de facto child. And in a difficult or high conflict divorce, some spouses will try and use the pet as a means to hurt the other spouse or gain an advantage in the ultimate property distribution. So, having a clear statute with guidelines for pets could benefit all pet owners during divorce.
So, what once seemed a celebrity fetish or occasional odd story fifteen years ago will soon become the norm in divorce courts everywhere – a perfect example of how the law does evolve to catch up with the times.
If you have questions about pet custody, contact us – we can help.