Full Title Name:  Who Let The Dogs Out?: Companion Animals in Human Divorces

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Kelly Olszuk Place of Publication:  Michigan State University College of Law Publish Year:  2020 Primary Citation:  Animal Legal & Historical Center 1 Country of Origin:  United States

I. Introduction

The unfortunate reality is that our beloved pets sometimes outlive our relationships. Despite the fact that a couple’s love for each other may come to an end, the love for our pets will not change. Traditionally, most states treat dogs, cats and other types of companion animals as property in the same way it treats a television or table set. In other words, the court treats the pet as a piece of personal property to be awarded to one of the parties when the couple separates. However, our pets are most likely more precious and hold more sentimental value to us than our household furniture.

Courts are slowly beginning to depart from this traditional property analysis. They acknowledge that pets cannot be treated the same as personal property. Case law has slowly started to recognize the importance of pet custody cases. Alaska, California, Illinois and New Hampshire have existing statutes allowing judges in divorces with pets to determine custody in contested cases. This allows judges to take the care of a pet into consideration when determining sole or joint ownership. For determining custody, questions such as “who walked the dog?” and “who took the cat to vet appointments?” are now permissible criteria.

This paper will examine how a pet would be shared between a disputing party when there is a divorce or separation. The discussion will explain property division and the determination of custody, including how courts have considered animals during a separation. This paper will outline how states currently recognize pet custody laws. Further, it will discuss the current laws enacted and the issues that remain unaddressed by these statutes.

The discussion next focuses on the factors that need to be considered when deciding pet custody cases. Next, is the determination of how future states will view pet custody cases and how they will differ from current laws. Additionally, the paper examines the application of allocating pets to couples who are married compared to those who are not married. Lastly, the paper concludes with some ideas of what can be done to protect all parties during a pet custody dispute in the future.

II. Property Division

Most pet owners would most likely not trade their pet for any amount of money in cash. Money cannot buy furry love. The majority of families view their pets as members of their family rather than property. People often refer to themselves as their pet’s ‘mom’ or ‘dad.’ People consider their pets as children, especially dogs. Popular culture recognizes the important role that pets play in our everyday lives. From commercials to TV shows to movies, we always see interactions between humans and their pets. In 2014, according to the American Academy of Matrimonial Lawyers, 27% of the lawyers they surveyed have noted an increase in pet custody cases during the past five years. Pet Custody Disputes On The Rise Find Nation’s Top Matrimonial Lawyers, PR Newswire (2016), available at https://www.prnewswire.com/news-releases/pet-custody-disputes-on-the-rise-find-nations-top-matrimonial-lawyers-245220181.html. The majority of disputed cases involve dogs (88%), cats (5%) horses (1%) and “others” (6%).

Although states have recently started to enact laws for pet custody cases, people have battled over custody of their pets for decades. Even in popular culture, celebrities battle over custody of their pets after their relationship ends. Financial support for pets is best negotiated in an out-of-court settlement because courts viewing pets as property do not order support. Such settlements include custody arrangements, visitation rights and pet support. Pet owners are understandably at odds with the legal view of the status of pets. Timothy L. Arcaro, Should Family Pets Receive Special Consideration in Divorce?, Fla. B.J., June 2017, at 22.

Historically, non-human animals are not the only living beings characterized as property – slaves, women and children were considered as property at one time. As society progressed, they were classified from legal things to legal persons. Schyler P. Simmons, What Is the Next Step for Companion Pets in the Legal System? The Answer May Lie with the Historical Development of the Legal Rights for Minors., 1 Tex. A&M L. Rev. 253 (2013). The Animal Legal Defense Fund (ALDF) states that animals “deserve a legal status that reflects the kinds of beings they are – individuals with their own desires and lives, who have the capacity for pain and pleasure, joy and sorrow, fear and contentment.” The ALDF monitors case law as part of its purpose of working for justice for animals. ALDF proposes an Animal Bill of Rights to include an animal’s interests to be represented in court. Furthermore, animals are defined as “legal persons” or as a hybrid of both property and persons. Animals’ Legal Status, Animal Legal Defense Fund, available at https://aldf.org/issue/animals-legal-status/.

Pets are more important than household furniture. Case law has slowly started to recognize that fact. In Raymond v. Lachmann, the New York appellate court classified a pet (cat) as a special type of property. The Court acknowledged that pets cannot be treated the same way as our other material possessions. As a result, the Court created a new standard for deciding ownership disputes over household pets under “the best for all concerned” standard. Raymond v. Lachmann, 695 N.Y.S.2d 308 (N.Y. App. Div. 1st Dept. 1999). In accordance with this standard, each side has the opportunity to prove not only why they will benefit from having the pet in their life, but also why the pet has a better chance of living, prospering, loving and being loved in the care of one spouse compared to the other.

People spend millions of dollars and countless hours on their pets. Humans splurge for the best food and toys. Some owners even allow their pets to sleep in their bed with them. We even go as far as buying pet health insurance and plan for pet trusts. The law of trusts treats pets as property in that the animal cannot hold the beneficial title. However, the Uniform Probate Code added a section in 1990 to ensure that a trust for the care of a pet and its offspring would be valid even if it is not charitable. Official recognition of a trust to be valid for a pet poses an obstacle for disinherited beneficiaries who try to challenge a bequest on the basis of testamentary incapacity.

Division in a divorce is generally based on community property or modified common law property. Common law regards animals as an “inferior sort of property” with no intrinsic value. Ranny Green, ‘Legal Beagle’ Offers Problem-Solving Tips, Seattle Times, Aug. 25, 1996, at H5 (quoting Linda Cawley, one of the nation’s first attorneys to specialize in dog and pet law). Community property states allow for a judge to divide all marital property equally, or into a 50/50 split between the couple before a divorce is finalized. In an equitable distribution state, the judge will evaluate and create a fair, but not always equal property settlement between the couple. The court then evaluates who earned, purchased, or owns the marital property.

An individual who owned a pet prior to the relationship will retain that pet upon dissolution. In other words, property owned before the marriage is excluded. On the other hand, pets acquired during the relationship will be awarded to the individual proving ownership. To establish ownership, financial responsibilities will be based on payment receipts of veterinary visits, nutrition, grooming bills, etc. There are exceptions to this rule. For example, if the pet was a gift, inheritance or a prior agreement that the other party says the pet is yours. The appellate court awarded the dog to the husband in In re Marriage of Stewart, despite the fact that the husband gave the dog to the wife as a gift. This court reasoned that “while courts should not put a family pet in a position of being abused or uncared for, [they] do not have to determine the best interests of a pet.” In re Marriage of Stewart, 356 N.W.2d 611 (Iowa App. 1984).

There is clearly a relationship between an animal and their human owner. Owners care about their pets and the pets care about their owners. Science acknowledges an animal’s emotional state. When a family divorces and tensions rise, the pet senses it. Perhaps more couples are waiting longer to start a family. Pets take an emotional importance that was not recognized in the past. The upcoming trend may stray away from the market value of the pet by recognizing that the real worth is not only financial, but also emotional. A pet’s value is derived from an animal’s relationship with its human companion.

A. Determination of Custody

Most likely, a couple both contributed to the upkeep of the pet. The court will split the property (pet) instead of awarding it to the original “owner.” The determination of pet custody cases present conflicts analogous to child custody cases. Physical placement, visitation and division of financial responsibilities are among the issues that arise when a relationship is in dispute.

Unlike child custody cases, those involving pets are seldom based on the best interests of the animal or even the owner. A pet is not a human being and is not treated in the law as such. The law views a pet as personal property. Thus, courts are left with little direction with how to resolve the issues of pet custody. What would happen to a pet during a divorce? 104 A.L.R.6th 181. Judges are sometimes unwilling to have pet related issues brought up in their courts. It is the judge’s discretion to hear and decide the outcome of the case. Some judges are not particularly fond of pet disputes and refuse to discuss pets in a courtroom. For avid pet lovers, not all judges are likeminded and will approach the situation with an empathetic understanding. Mandy McKellar, Esq., Love Me, Love My Dog (Part Deux): Family Law and Fido, 25 Nev. Law. 8 (May 2017).

The very limited case law has developed and expanded to include factors to include: who and when did the couple buy the pet, the pet’s well-being, the relationship between the pet and the owners, who was responsible for caring for the pet’s daily needs, special training, nutrition, boarding, doggie day care, who spent more time with the pet, home environment of each party, and each party’s physical and financial ability to care for the pet, etc. Couples often test their relationships by the ability to “co-parent” a pet, whether they are married, engaged or even dating. Just like a child, pets bring emotional, psychological, and financial responsibilities. On the other hand, if there are children, the court may allow the pet to stay with children.

Typically, ownership is awarded to the spouse who initially paid for their animal companion. States enacting laws for companion animals in divorce proceedings decide whether “ownership” or “custody” laws apply to divorcing partners. The Humane Care for Animals Act defines a “companion animal” as an animal commonly considered to be a pet such as dogs, cats, fish, and birds. 510 ILCS 70/2.01a. While couples work together to develop a mutual property settlement, those couples who cannot agree must ask the judge to decide for them. A pet is merely property and is to be considered the same way as furniture or real estate.

Dogs and cats are the most prevalent in disputed family law cases, but of course there are other animals. Discretion is left to the judges, some of whom still view pets as property. In divorce proceedings, courts only view the ownership and monetary fair market value of the pet. According to the law in most jurisdictions, it is clear that cases involving ownership disputes of pets cannot be treated the same way as custody disputes over children.

B. How Courts Have Considered Animals During a Separation

The Uniform Marriage and Divorce Act (UMDA) was created to address the division of marital property in an equitable distribution jurisdiction upon dissolution of a marriage, legal separation, or disposition of property. 9 U.L.A. 9.1 (1979). Pet custody cases brought before a court may further burden family law cases. Judges deciding child custody and support cases may be unwilling to use court resources to determine the custody of pets. However, courts are now beginning to recognize the intrinsic emotional and physical value of pets.

Furthermore, in some instances, jurisdictions have created a mediator for animal disputes. In 1944, one of the first cases to consider a mediator, the court in Akers v. Sellers used their resources to determine the issue of a dog’s residence. The court was unable to measure the “true value” of the dog to the parties, however, they set a monetary value of twenty-five dollars. In this case, the court found that the husband gave the dog to the wife and that there was no reason to show why possession should not accompany ownership. Akers v. Sellers, 54 N.E.2d 779 (Ind. App. 1944).

More recently, the court in In re Marriage of Enders and Baker looked at the Animal Control Act. The Act defines an owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” 510 ILCS 5/2.16 (West 2014). This case is about a husband who was denied visitation rights to the dogs that were jointly owned by the parties. In re Marriage of Enders and Baker, 48 N.E.3d 1277 (Ill. App. 1st Dist. 2015). The court awarded the dog to the wife under traditional analysis because she acted as their regular “custodian.”

An animal’s well-being in the context of changing circumstances could be a substantial factor in the analysis. Compared to an enforcement to other kinds of property division orders, enforcement of an order requiring ongoing sharing of a family companion animal requires the power of a modification. Unlike child custody cases, there are no legislative authority for the court to supervise the parties with respect to the care of a companion animal. Even if there is a stipulation, an agreement to share custody of a family dog or other pet is unenforceable in the family division. Hament v. Baker, 97 A.3d 461 (Vt. 2014).

III. How State Laws Currently Recognize Pet Custody

Because courts have been unwilling to go beyond traditional property paradigm for animal custody, state legislatures have begun to shed light on the matter of pet custody, visitation rights, and petimony. In 2007, Wisconsin was the first state to propose a pet custody law outlining how divorcing couples and the courts would handle custody battles, but never passed it. Christopher S. Krimmer, Following Alaska’s Lead: A Wisconsin Pet Custody Statute?, 90 Wis. Law. 42 (April 2017). Four states – California (Cal. Fam. Code §2605 (West)), Alaska (AS § 25.24.160), Illinois (750 Ill. Comp. Stat. Ann. 5/502), and New Hampshire (N.H. Rev. Stat. § 458:16-a) - passed legislation but they do not say the same thing. Furthermore, these four states do not recognize common law marriage. The laws did, however, set precedence for other states to follow.

A. Current Laws Enacted

In 2017, Alaska became the first start to require courts to consider the well-being of an animal in a divorce hearing. This creates a clear legal distinction between pets and personal property. Judges may grant joint custody of animals in divorce proceedings to include pets in domestic violence protective orders just as they would for children. AS § 25.24.160. According to the Animal Legal Defense Fund, family court judges in every state have the option to consider an animal’s well-being at their discretion. Animals’ Legal Status, Animal Legal Defense Fund, available at https://aldf.org/issue/animals-legal-status/. Alaska’s statute was the first in the country to mandate judges to do so, and the first to specifically allow for joint pet custody orders.

In 2018, Illinois followed with a law allowing for sole or shared pet custody in divorce proceedings based on the “best interest of the animal” standard. 750 Ill. Comp. Stat. Ann. 5/502. Alaska and Illinois have similar statutes. By providing clear direction, courts will award custody on what is best for the animal rather than treating the pet like other inanimate property.

California’s pet custody law went into effect in 2019. This is somewhat similar to the way courts consider the best interest of the child when awarding child custody. California’s statute defines a pet as “any animal that is community property and kept as a household pet.” For example, the signing of the pet custody law makes clear that courts must view pet ownership differently than the ownership of a car. Cal. Fam. Code §2605 (West). California’s law is the most specific and a handful of states are using it as a model. The law instructs courts to consider the best interest of the animal when awarding custody of a pet in divorce. It sets up special assessments that judges use to determine custody because pets are not considered children and are technically property.

Finally, New Hampshire enacted a pet custody law in 2019 allowing judges to take into consideration the best interests and well-being of the pet. This statute allows a judge to assign sole or joint custody. N.H. Rev. Stat. § 458:16-a. The relatively new pet custody laws require courts to take into consideration the well-being of a companion animal. Because these provisions are new, guiding case law remain sparse.

B. Issues That Remain Unaddressed by These Statutes

On the other hand, issues are still presented that remain unaddressed by these statutes. For example, judges may find it troublesome to gather resources to oversee pet custody hearings. Family courts are not likely to enforce or supervise a pet visitation schedule or petimony even if the parties agree to it. Depending on the couple, the parties might use the pet as leverage or a bargaining chip for negotiating against the other spouse in a divorce. Unfortunately, in many states, family pets are still considered personal property. This “property” statutes mean that the fate of the animal remains as a single piece of the larger property division negotiation. The enforcement of court orders is missing from state laws. Additionally, the laws fail to address whether “visitation” is enforceable.

With the use of current case law and judge’s discretion, pet custody laws may allow for “petimony” to a spouse in a divorce proceeding. Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 U. Colo. L. Rev. 181, 223 (noting a number of trial decisions with petimony awards). Petimony would provide stability for the family by looking beyond the purchase price of the animal. At that point, financial support is also taken into consideration by presenting evidence for the care, affection and mistreatment of the pet. Legal protections for pets include a long-term plan for an animal’s care in an event of a separation or divorce. Maneesha Deckha, Property on the Borderline: A Comparative Analysis of the Legal Status of Animals in Canada and the United States, 20 Cardozo J. Int’l & Comp. L. 313 (2012).

IV. Factors to be Considered When Deciding Pet Custody Cases

The public view of pets is at odds with the legal view of pets. The conflicting law requires courts to modernize their approach to assisting couples in resolving disputes over pet ownership. Pet ownership increases each year. It should not be a surprise that pet custody cases are emerging nationally. Slowly but surely, courts have begun to recognize pets as more than just mere property.

Accordingly, courts may face the following dilemmas: 1) how to apply the new statutory provisions and whether they are modifiable; 2) how to address the financial care, responsibility and support of the pet; and 3) how to supervise or conduct a visitation. A person will likely be awarded the pet during a divorce if they brought a pet into the marriage. If the pet is considered marital property and if the parties cannot agree, the court will then decide the pet’s fate based on testimony and fact-finding. The judge will consider several factors to determine who would be best suited to keep the animal.

While the handful of states with legislation have begun to provide some framework to assist courts with sentient property, questions remain. Some questions are as follows: Did one person acquire the pet prior or during the relationship? Who spends the most time with the pet? Who acts as the primary caretaker (i.e., basic needs, exercise, grooming, veterinary visits, etc.)? Who is more financially comfortable to care for the pet? Who has more space at home and has the most flexible work schedule? If there are children involved, where will they be living? Respecting personal preferences, California Community Property Law § 11:34 (2019 ed.).

Divorce is traumatic for children but also for pets as they have feelings too. This particular factor is quite important and holds more value because animal companionship helps children cope with stress. It is important to note that big changes such as moving to a new environment is stressful for all parties involved. How do courts handle the award of pets while balancing that effect on the psychological needs of the children in the relationship? All of these considerations remain to be fleshed out in future legislation and case law.

V. Case Law and Emerging Issues

In our society, pets are often viewed as children. At times, judges feel that it may be too overwhelming, time consuming and costly to settle pet custody disputes in the midst of other complicated family law issues. Overall, courts have applied a type of hybrid approach between the “best interests” standard and the “best for all concerned” standard. A pet falls somewhere between personal property and like a human child. However, if the relationship is non-marital, the pet goes to whichever person the pet belongs to prior to the relationship. It is divided equitably. L. Morgan Eason, A Bone to Pick: Applying A “Best Interest of the Family” Standard in Pet Custody Disputes, 62 S.D. L. Rev. 79 (2017).

Judges are empowered to take into consideration the care of the pet when determining sole or joint ownership. Both litigants love the pet and want to care for their pet. When a family breaks up, especially in a divorce, who gets custody of the pet becomes a legal issue. The pet will be given to one party, not both. More couples are adopting as they would eventually want to wait longer to have a human child of their own. Also, it is important to consider who has been caring for the pet while they are separated. If the separation was a longer period of time, it probably would be more stressful to the pet as it presents inconsistency.

A. Enforcement of Visitation Orders

When a couple owns a pet jointly, it may seem natural that, upon divorce or dissolution of a relationship, each party would “take turns” in caring for the beloved pet. But, as with child custody and visitation, animosity may develop. It is possible that a divorcing couple might not abide by the agreement amicably. It is also probable that such animosity would exist for pet visitations. The complication with pets is that they are considered personal property by law and courts may be unwilling to allow visitation with a pet any more than a couch or television. In fact, some courts have even refused to enforce such agreements.

The problems with enforcement of dog visitation were illustrated in a Rhode Island case. The Rhode Island Supreme Court held that there was no evidence of bad faith concerning an ex-husband’s visitation with their two dogs acquired during the marriage. The wife, Diane, contended that the dogs were chattel. Further, she also asserted that her husband, Paul, failed to provide safe conditions and return them to her in an undamaged condition. The matter was then returned to Family Court. Giarrusso v. Giarrusso, 204 A.3d 1102 (R.I. 2019). The Supreme Court of Rhode Island held that unlike child custody matters, there is no legislative authority for the court to play a role in the supervision of the parties with respect to the care and sharing of a companion animal. Hament v. Baker, 97 A.3d 461 (Vt. 2014).

In another visitation case, a court considered the effect of recession of the dog visitation provision on the entire agreement. In an action to dissolve a domestic partnership, the parties entered into a settlement agreement including visitation rights for their dog. Oregon’s Court of Appeals held that invalidating the dog visitation provision would invalidate the entire agreement. Wolf and Taylor, 197 P.3d 585 (Or. App. 2008).

It is possible that courts may establish a shared “custody” schedule to satisfy both parties. This could potentially include where and when exchanges will occur. In the event that this is not possible, a judge may allow a couple to begin mediation. This is when a neutral third party meets with the couple to review any unresolved issues relating to the divorce. Couples should consider divorce mediation because the mediator will help work an acceptable plan that takes the pet’s best interests into consideration. L. Morgan Eason, A Bone to Pick: Applying A “Best Interest of the Family” Standard in Pet Custody Disputes, 62 S.D. L. Rev. 79 (2017).

B. When Couples are Married Versus Unmarried

Another emerging issue that remains is custody disputed between unmarried couples. In 2013, the trial court in Travis v. Murray did not apply a child custody “best interests” standard. The court recognized that a dog did not rise to the same level of importance as a child. Shannon Travis and Trisha Murray purchased a dog (Joey) while they were in a relationship. Over a year later, they married. Seven months later, Trisha left the marriage and took Joey with her. The custody dispute involved two arguments: 1) Shannon argued that Joey belonged to her because she bought the dog before the marriage with her own money; and 2) Trisha argued that Joey was a gift from Shannon on the basis that Shannon made her give away her cat prior to moving in together. The court added a third argument: a custody analysis. They looked at the nurturing, care, happiness and best interests of the dog. Travis v. Murray, 977 N.Y.S.2d 621, 42 Misc. 3d 447 (N.Y. Sup. Ct. 2013).

A strict property analysis (pre-marital purchase versus a gift to another) also was not appropriate. Instead, they applied a “best for all concern” standard. This takes into consideration: a) the benefits to each party by possessing the dog; b) the benefits to the dog by living with one party over another; c) who bore the majority of responsibility for the dog’s needs; d) who spent more time with the dog; and e) other relevant factors to this specific dog. The Court concluded with a “custody” order that one person would be awarded Joey and the other person would not be granted any visitation rights. Id. at 461.

The application of a best interest standard might be chosen on a case-by-case basis. In 2016, New York applied the same analysis to a pet custody dispute between an unmarried, co-habitating couple. The Court held that both parties were joint owners of their dog, but it was best for all concerned that the defendant remain in possession of the black Labrador Retriever. Mitchell v. Snider, 41 N.Y.S.3d 450 (N.Y. Civ. Ct. 2016). A judge would decide who is in a better to position to care for the pet or is the better caretaker. The pet will undoubtedly have basic living expenses as well as other responsibilities including veterinary bills, medications, grooming and medical treatment.

There are many scenarios that could make for a more complicated litigation. For instance, if a couple is unmarried, it could become problematic. Hypothetically, one person pays and registers for the animal but the other is still involved, cares and acts as a co-owner albeit not living together. In the future they may live together, marry and divorce. If that happens, based on the classification of non-marital property, property acquired before the marriage is non-marital property.

The first step of reaching an analysis for this hypothetical would be to decide whether the animal is a marital or non-marital asset. This may seem simple. However, one person might argue that the pet was purchased together, in contemplation of marriage; that it was a gift into the marriage; or that the pet is commingled into the marital estate based on a person’s contributions. There are many questions that are left unanswered. What if a court initially finds that a companion animal is not a marital asset? Does fact-finding preclude a court from allocating sole or joint custody if the pet is not a marital asset? Would anything differ if the parties lived together when they were unmarried? What if there are receipts proving that the couple paid half of the expenses for the animal and registration is under both names instead of one? In 2003, Houseman and Dare, an engaged couple living together, purchased a pedigree dog. They registered the dog with the American Kennel Club and reported that they were both owners. Houseman v. Dare, 966 A.2d 24 (N.J. Super. Ct. App. Div. 2009).

In this breach of contract case, the boyfriend made a verbal promise that the girlfriend would keep the dog if they decided to end their relationship. The appellate court required specific enforcement of the promise. They found that the dog possessed “special subjective value similar to heirlooms, family treasures, and works of art.” While the couple was never married, could the argument be used in a divorce situation where a verbal promise is made concerning a pet? Id. at 27. Similar to unmarried couples, other difficult scenarios include cases involving LGBTQ couples or even roommates.

VI. Pre-Marriage Enforceable Pet Agreements

Divorce rates are continuing to increase. Many Americans have adopted pets amid the coronavirus (COVID-19) global pandemic. About 33% of Americans have considered adopting a pet now that social distancing is the new normal. Many Americans Have Adopted Pets Amid Covid-19. But Beware The Costs, CNBC (2020), available at https://www.cnbc.com/2020/08/10/many-americans-have-adopted-pets-amid-covid-19-but-beware-the-costs.html. Thus, it would not be surprising that pet custody cases in divorce battles will continue to be a rising issue during stressful times.

In light of these concerns, some legal experts suggest some non-judicial alternatives. Families who are seeking a divorce can set up a pet’s visitation schedule to also sync with a human child’s custody schedule. Although these agreements are not enforceable by a court, they are more likely to allow it since a child would navigate the divorce with more ease. However, in some instances, if an agreement or contract is notarized, it may be enforceable, depending on state law. 141 Am. Jur. Proof of Facts 3d 349, § 18 (Originally published in 2014).

The fact that pet owners have emotional and physical attachments to their pets, the family pet is typically the center argument. Although some pet custody cases could be resolved through negotiation, mediation and compromise, there still may still be unresolved issues. Some factors to help courts determine who will obtain custody of their pets include the pets’ emotional and economic value. An economic value does not only include their fair market value but also the result of being a show animal, pure breed, performance or rare animal. Because of this, when a relationship ends, it may be helpful to establish who is the primary caregiver of the pet. Animals’ Legal Status, Animal Legal Defense Fund, available at https://aldf.org/issue/animals-legal-status/. As a result, this may enable a court to better employ the best interests model for awarding custody.

Some advocates even suggest the need for a prenuptial agreement for a pet or a “pup nup” may arise. Such an agreement puts our furry family members’ best interests at heart. It also protects both parties by providing clear guidance that the pet will be cared for. A “pup nup” is a contract that a couple writes with clear direction for their pets if they split. If a state does not uphold pet custody agreements, the separating couple must decide with other alternatives with how to move forward with an agreement. Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 Univ. Colo. Law Review 181, 229 (2003). See also, Linda A. Cawley, Legal Beagle: Diary of a Canine Counselor 175-86 (1996) (discussing various dog custody cases stating that the “best protection for couples is to provide for the pets upon marriage in a prenuptial agreement”); Claire Martin, Planning Ahead for a Divorce: Prenuptial Pacts Give Marriage a Shaky Start, Denver Post, Mar. 20, 1990, at 1E (discussing prenuptial agreements generally and citing to an attorney who has had clients include clauses specifying the custody of the dog).

In the event that a relationship comes to an end, a “pup nup” saves the couple time, legal fees and emotional distress. This important document allows the stress of deciding the fate of a pet outside of the courtroom. It allows primary custody, financial responsibility and visitation rights. An agreement encourages pet owners to make a long-term plan for their animal’s care. A protection like this for a pet focuses on the cost of pet care to include veterinarian expenses, doggie day care, boarding, grooming, toys, nutrition, exercise, etc. The agreement protects the couple’s pet by ensuring that the pet will receive support and care agreed by both partners even if there is a separation or divorce. Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 Univ. Colo. Law Review 181 (2003).

VII. Conclusion

Although the law in most states do not treat pets like children, family courts are recognizing the importance pets are to families. It is likely just a matter of time before other states will follow California (Cal. Fam. Code §2605 (West)), Alaska (AS § 25.24.160), Illinois (750 Ill. Comp. Stat. Ann. 5/502), and New Hampshire’s (N.H. Rev. Stat. § 458:16-a) pet custody laws. Society’s attitude is shifting toward the view that companion animals are also family members. The state’s enacted legislation mentions the “well-being” and “care” of the pet, recognizing that we should consider the pet’s interests.

Limited case law suggests that in the future, states may follow the best interest standard approach similar to California, Alaska, Illinois and New Hampshire. Visitation might not be the most enforceable aspect because courts are not likely willing and able to monitor it. Rhode Island, Pennsylvania and Washington, D.C., have legislation pending that would follow the current state laws on pet custody disputes in divorces. Pets Are Part of Our Families. Now They’re Part of Our Divorces, Too, Time (2020), available at https://time.com/5763775/pet-custody-divorce-laws-dogs/.

We treat our pets as family, and they should get special consideration. Courts have traditionally treated pets as personal property. Lawmakers and advocacy groups now promote the idea that the legal system should act in the best interests of the animals. Fortunately, increased public concern for our pets could lead to significant changes to sharing our furry friends in human divorces.

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