Should “Pet Custody” Work Like Child Custody?

On behalf of The Marks Law Firm, L.L.C. posted in Divorce and Pet Custody on Tuesday, April 1, 2014

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Many of us have cherished family pets, some we obtained as a family for the children, some in place of having children.  One need only walk into a pet store to realize how much we value our pets.  So, it should come as no surprise that determining who receives the family pet could stir up emotions similar to those related to children, particularly for couples without children.  But, for the most part, the law does not handle pets the same as children.

Traditionally, the law has considered pets nothing more than property.  Ownership alone determined who would receive a given pet.  A party would submit original purchase receipts, AKC registries, electronic chip addresses and veterinary records to establish the true “parent” of the pet.  In cases where a pet would be purchased prior to a marriage, the listed owner would claim the pet as separate property.  In cases where a pet was purchased during the marriage, the pet became marital property and the court generally assigned a dollar value – the cost of acquisition or AKC valuation in cases of rare pure-bred dogs – that would compensate the parent who does not receive the pet.

At this point all pet lovers and many other compassionate folks may interject, “Courts handle beloved pets like furniture?  How can cash compensate someone for the love of a pet?”  For years, the typical response of the court would be a glazed look and a comment that your pet is not your child.

Forward thinking pet lovers took to placing provisions in prenuptial or postnuptial agreements concerning the custody of the family pet.  Some pet lovers have created trusts to care for their pets in the event of the owner’s premature death.

But given that most people do not take advantage of prenuptial agreements to plan for custody of their pets, how can pet lovers keep from losing contact with their beloved pets after divorce?

The most common method would be negotiation – which could range from foregoing one other item for the family pet, to creating an actual schedule of physical custody for the family pet.  Another popular solution would be to have the family pet follow the children if the attachment to the pet is particularly strong for the children.

We should note that the trend toward “pet custody” resembling something closer to “child custody” has already begun in New Jersey and Iowa, where courts have pioneered a subjective consideration of a pet as more than just property.  These states allow courts to consider attachments to the pet, caring for the pet and paying for the pet as factors beyond mere listed ownership in deciding who should receive the family pet.  These states also have approved of actual schedules of shared physical custody in situations where both parents had strong love for and attachment to the family pet.

For those of us who have loved a dog for many years, or grown up in a household with one or more pets, the idea of treating that pet as property seems cold and even morally wrong.  If animal cruelty can be a felony (ask Michael Vick), it would seem that our family courts should have the right to an equitable custodial remedy for family pets, as it becomes cruel to the animal and the owner to separate the two.  States should begin to amend their statutes to allow for more than simple financial consideration of family pets, or adopt the trends from New Jersey and Iowa.  In the meantime, pet lovers should put their wishes in writing through prenuptial or postnuptial agreements, as it may be the only protection available in the even of divorce.

If you have questions about custody of pets during divorce, contact us – we can help.