Custody of Pets in Divorce

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Brief Summary of Pets in Divorce/Custody Issues
Tabby McLain (2009)

When a married couple divorces, the question of who gets to keep the pets often arises.   Whereas the laws are designed to protect the best interests of human children in divorce (allowing for shared custody, visitation, and alimony), the laws for pets are intended to benefit the owner instead.   Under the law, pets are considered to be personal property, capable of human ownership and control.   Courts working under that law only strictly have authority to award a pet to one owner or the other.   To grant shared custody or visitation of the couple’s pets would be exactly the same, in the eyes of the law, as having them trade their television back and forth from one week to the next.

Normally, before a court decides who gets what property in a divorce, it must first consider whether its jurisdiction is a community property (split 50/50) or an equitable distribution (split fairly) state.   It must then decide which property actually belongs to the couple (rather than to just the husband or the wife) and how much each piece of property is worth.   Finally, it will take into account whether the couple already has some sort of agreement about who gets what (a prenuptial or postnuptial agreement).   Even in deciding who gets the pets, the court goes through these same steps.

Because pets are becoming such a big part of our lives, some courts are beginning to change this analysis, and are willing to treat pets more like children.   To date, this has primarily occurred with dogs.   Courts have considered the best interest of the pets in determining who gets custody of them.   They have also awarded shared custody, visitation, and alimony payments to the owners.   If a court is unwilling to do this, owners often work out a contract between themselves instead.

Even if the laws were to change to allow for broader considerations in determining pet custody, there are still unanswered questions (for example, which relationships and which species should qualify for protection).   For now, creative arguments from the parties and open-mindedness on the part of judges are just starting to lay the groundwork for future case law.   The potential for changes in pet custody laws seems to be at a peak.

 

Overview of Pets in Divorce/Custody Issues
Tabby T. McLain (2009)

An issue becoming increasingly common for a couple going through a divorce is that of who will get to keep the pets.   As divorce rates increase, more couples choose to forego having children, and pets become more a part of the family, this problem is becoming more and more prevalent in our society.   However, only a handful of options are available to divorcing pet owners attempting to address the concern.

Under the law, a pet is personal property.   It is treated exactly the same as any other material good in the home (as far as ownership goes; obviously, anti-cruelty laws are available to pets but not to recliners).   That means that when a couple goes through a divorce, a pet whose custody is in dispute becomes part of the divorce order issued by the court. 

In order to determine which party will retain ownership of personal property in a divorce case, the court deciding the case generally looks to several factors.   First, the court will either apply the laws of community property or of equitable distribution in making its decision.   In a community property jurisdiction, all of the couple’s property is split 50/50 between the husband and wife.   In an equitable distribution jurisdiction, the court will split the property “equitably,” or fairly, but not always equally.   This sort of division will depend on a list of factors, which might include items like how long the couple has been married, future earning ability of the parties, and who put the most effort toward acquiring the item.   Which law to apply is set by the state in which the court sits, and each state has its own version of the law; however, the substance will remain the same between states.   Next, the court will determine which property is actually divisible as part of the marital estate.   The marital estate usually will not include items that one spouse received as a gift or as an inheritance, or obtained before getting married.   The court will also determine what each article of property is worth.   Finally, it will look to see whether the couple has an agreement about property division- either a prenuptial or postnuptial agreement.   The court does not have to honor this agreement, but it usually does.   After looking to each of these factors, the court will make its own order about which property belongs to which party.   This same analysis is the norm for determining pet custody (the pet will be the piece of property evaluated), and the only option the court has strictly under the law.

Some judges have begun to create precedents in the field of pet custody that differ from the straight property analysis.   The majority of cases in which this has occurred have concerned dogs.   When a couple gets a divorce and custody of children is in question, the court must look to what would be in the child’s best interest in order to determine custody.   Again, the best interest law changes between states, but often includes factors such as who the child prefers to live with and its relationship with its parents, the health of the parents and the child, and how well the child is able to adjust to the change.

Because pets are personal property legally, the courts do not have to consider their best interest in awarding ownership.   However, some courts have started to do just that, looking at which owner the pet spends the most time with or who takes care of the pet primarily.   Some courts have even awarded “petimony,” an alimony-like payment for maintenance costs of the pet to the custodial owner from the non-custodial owner.   Others have removed pets from homes with dangerous aspects, like an unsafe yard or other aggressive dogs in the home.   Some courts have also awarded shared custody to the divorced husband and wife jointly, or ordered visitation rights with the pet for the non-custodial owner.   This is sometimes a problem because there is no explicit legal authority for such verdicts; there is also no agency to monitor or police such orders.   Finally, some couples return to the already-busy courts because they are unable to get along in attempting to carry out the judge’s orders.   When, for reasons such as these, a court is unwilling to order such an arrangement, couples often work it out between themselves and their lawyers through a contract.

In deciding cases which go beyond a straight property analysis, the courts are creating common law, which can be used to support arguments for similar treatment of pets in divorce cases in other areas of the country.   Currently, the laws state that pets are personal property and should be awarded to one owner or the other just like any other object.   It appears, from the current climate in the field of pet custody, that this method of determining ownership has the potential to change in the near future.   While the majority of courts continue to utilize the property analysis in addressing such issues, more and more courts are reaching beyond that.   If the law is expanded in the future, questions such as which relationships and species should qualify for greater protection under the law will need to be answered.   One good starting point for discussing a solution is Michigan State University College of Law’s Animal Law Professor David Favre’s concept of “living property,” which he defines as “physical, movable living objects- not human- that have an inherent self-interest in their continued well-being and existence.”   (David Favre, Animal Law: Welfare, Interests, and Rights 36 (2008)).   This approach would allow pets to remain property in status, but would force the law to consider the pet’s well-being in making determinations about their futures.

 

Related articles

Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals , 74 U. Colo. L. Rev. 181(Winter 2003).  

 

Related cases

In Juelfs v. Gough , the husband and wife had agreed to shared ownership of their dog, which the lower court incorporated into its order. Based on danger the dog faced by other dogs in the wife’s home and increased contention between the parties, the lower court next gave the husband custody with an order for the wife’s visitation, and finally awarded sole custody to the husband. The state’s Supreme Court affirmed the modified order.

In Bennet v. Bennet , the trial court awarded the wife visitation of the dog, but the appellate court overturned the order based on the fact that the trial court lacked authority to order visitation with personal property, and remanded that the dog be allocated according to the state’s equitable distribution doctrine. The court there further illuminated its holding with comments that it was concerned with judicial economy.

In Desanctis v. Pritchard , the trial court dismissed a couple’s complaint asking it to enforce a settlement agreement that provided for shared custody of the dog, and the appellate court upheld the dismissal.

The court in Nuzzaci v. Nuzzaci refused to sign an stipulation and order (prepared by the parties and signed by each of them and their attorneys) concerning visitation of the divorcing couple’s dog, stating that the court can only award the dog in its entirety to one party or the other, advising the couple to come to their own agreement, and reasoning that the court has no jurisdiction in the matter and further no way to side with one party or the other in the event of a future dispute.

In Arrington v. Arrington , t he court bestowed special status upon companion animals in divorce proceedings, classifying them as personal property but for which visitation should be allowed.

In the case In re Marriage of Tevis-Bleich , the couple had agreed to a divorce settlement granting the husband visitation of their dog, which agreement the court incorporated into its order. The wife later sought to have that provision removed, but the trial court stated that it lacked jurisdiction for such a modification, which the appellate court affirmed, leaving visitation intact.

In Fitch v. Eiseman , the trial court incorporated into the divorce decree the couple’s agreement for the dogs to remain with the children, which involved travel between the parties’ homes as part of the children’s shared custody agreement; when the wife failed to abide by the agreement, the state Supreme Court remanded the matter to the trial court to determine sole ownership by one of the parties.

In Pratt v. Pratt , the court held that the best interest standard for children is inapplicable to dogs, but stated that the trial court can take into account the past mistreatment of the dogs.

In Vargas v. Vargas , a court awarded custody of the couple’s dog to the wife after considering testimony that the husband was not treating the dog very nicely and the facts that the husband’s home included both a scrap metal yard and a five-year-old child, despite the fact that the dog was a gift from the wife to the husband and the dog was registered to the husband with the American Kennel Club (A.K.C.).

 

Related laws

Uniform Marriage & Divorce Act. Section 307. Part III Dissolution. Section 307 Disposition of Property.

Related Links

 

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External Links:

What To Do If You Are Involved In A Custody Battle Over Your Companion Animal, http://www.aldf.org/article.php?id=239   

For a hypothetical A.L.D.F. amicus brief based on an actual case, see http://www.divorce360.com/divorce-articles/child/custody/friend-of-court-brief-animal-defense-fund.aspx?artid=286

 

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