Pet Custody During Divorce

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Brief Summary of Pet Custody and Divorce
Kelly Olszuk (2020)

Despite the fact that a couple’s love for each other may come to an end, the love for our pets will not change. When a couple separates or divorces, all issues surrounding the relationship are at dispute. Both parties must reach an agreement on division of assets, debts, spousal support and child custody. In the event that a couple does not reach a consensus, the court will decide for them. How will a pet be distributed or even shared?

“Pet Custody” cases are relatively new within family law. Laws and rules governing this issue vary state to state. In a majority of states, pets are considered personal property, like a sofa or television set. While they are living creatures, their owners did not possess a special right for them even though they move, eat, and have feelings. Pet ownership typically goes to the spouse who paid for their animal companion. However, case law and even legislation involving pet custody arrangements is quickly evolving.

Courts are 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 unique concerns of pet custody cases including the enforceability of pet visitation agreements and pre-marriage pet contracts ("pup nups"). Alaska, California, Illinois, and New Hampshire have recently enacted statutes that allow judges in divorces with pets to determine custody in contested cases. This allows judges to take the "best interests" of a pet into consideration when determining sole or joint ownership, similar to child custody. For determining custody, questions such as “who walked the dog?” and “who took the cat to vet appointments?” are now permissible criteria.

While courts have traditionally treated pets as personal property, our society considers pets as family members and many feel they should get special consideration. 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.

Overview of Pet Custody and Divorce
Kelly Olszuk (2020)

Divorce and family law are constantly evolving areas of law. As the legislature changes outdated laws, many issues are introduced by society’s views. This is especially true when it comes to our beloved furry animals and human divorces. Dogs, cats and other animals are deeply cherished by humans. They are often viewed as part of the family. They bring years of joy, companionship and happiness to a family. Not surprisingly, when a couple separates, pets are a major conflict during a divorce.

Pet disputes in divorce will likely continue to be an issue for decades to come. While pet disputes could resemble a child custody dispute in many ways, the legal framework remains at odds. Consequently, introducing pet custody arrangements set by relationships between humans and their pets during a divorce brings up a unique area of family law.

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 (see In divorce agreements, pets are considered to be either personal property or a possession like furniture or fine china. Protections for pets are nearly non-existent. In other words, usually whoever purchased the animal and paid for a majority of the expenses gets to keep the pet. Judges do not often take into account who has bonded with the pet or who let the dogs out more when resolving a custody battle over an animal.

Some states have responded to this issue by passing legislation making custody of the pets similar to custody of a couple’s child or children. Alaska, California, Illinois and New Hampshire passed legislation to make sure that pets are treated differently than property. These statutes also call for a pet’s well-being to be taken into consideration during a custody battle. Such legislation is helpful because, in some cases, a couple cannot agree on who gets to keep the pet. A person may even take the animal to a shelter to seek revenge on the other partner. In these types of scenarios, people use the pet as a bargaining chip so that their partner would waiver other important issues, like finances.

Even in the handful of states with pet best interests laws, the need for a prenuptial agreement for a pet or a “pup nup” may arise. Just like prenups and postnups, “pup nups” are contracts that couples could use to write out what will happen with their pets should they split. A “pup nup” can help when there is a need for a divorce especially as more and more couples are in court battling over their pets.

In the event that a relationship ends, a “pup nup” would save the separating couple time, money for legal fees and emotional distress. This important document keeps the stress of deciding the fate of the pet outside of the courtroom while also outlining who will maintain primary custody, financial responsibility and visitation rights. A “pup nup” encourages pet owners to make a long-term plan for their animal’s care in the event of divorce and can include determinations on veterinarian expenses, doggie day care, boarding, grooming, toys, nutrition, exercise, etc. The “pup nup” protects the couple’s pet by ensuring that the pet will receive support and care agreed by both partners even during an event of a separation or divorce.

Families who are in the midst of a divorce may want to set up a pet’s visitation schedule to also sync with a human child’s custody schedule. This may ease the trauma of divorce with children. Although these agreements may or may not be enforceable by a court, they reflect the importance pets play in a family. The family pet is typically a crucial argument because pet owners have emotional and physical attachments to their pets.

An increase in awareness about animal welfare has made the issue of what to do with pets after dissolution of a marriage or relationship much more complicated in recent years. In some relationships, both parties genuinely and equally love the pet. Although four states have made progress by enacting pet custody laws, it is important to note that it has limitations. Laws put the decision of a four-legged friend into the hands of a judge who does not know the animal as well as the couple.

Unfortunately, a judge may not fully appreciate the emotional attachment between the animal and humans involved regardless of which party purchased the pet. Until most states follow similar pet custody laws, parties may try to implement a pet custody arrangement without the need for a court order. Despite the slow progress in this area of law, many issues remain unresolved such as the pet disposition in unmarried relationships, the enforceability of visitation with pets, awards for costs of pet care, and challenges to court awards of pets based on alleged abuse or neglect. Like many areas of animal law, the issue of pets in divorce is evolving, but ever so slowly.

Related articles

Separation, Custody, and Estate Planning Issues Relating to Companion Animals,  Rebecca J. Huss,  74 Univ. Colo. Law Review 181 (2003).

Related cases

Recent pets in divorce cases:

Giarrusso v. Giarrusso,  --- A.3d ----, 2019 WL 1606351 (R.I. Apr. 16, 2019). This Rhode Island Supreme Court case centers on a disagreement among former spouses concerning the ex-husband's visitation with their two dogs acquired during marriage. The Court held was not inequitable to enforce the visitation term in the Marital Settlement Agreement as written.

Moore v. Knower, 214 So.3d 165 (La.App. 4 Cir., 2017). Bruce Moore alleged that they both jointly adopted Abby, a Boston Terrier in 2010. The couple jointly shared expenses for the care and management of the dog. After the parties broke up, they agreed to an arrangement in which each party alternated possession of Abby every week. The court concluded that Abby was indeed co-owned by Moore and Knower and ultimately held that Knower had no right to unilaterally end the arrangement. Knower did not supply sufficient proof to support her claim of full ownership. Moore was awarded Abby and the right to solely determine use and management of the dog.

Hogan v. Hogan, 199 So. 3d 50 (Ala. Civ. App. 2015). This case is an appeal of a judgment granting an Alabama divorce. With regard to animal law, the husband argues on appeal that the trial court erred in awarding the wife the couple's two dogs. Specifically, the husband argues that one of the dogs was given to him as a gift and is therefore his separate property. He also suggests that because the dogs lived with him since his wife moved out of the marital property, he is the "proper owner" of the dogs.

In re MARRIAGE OF Kimberly K. Enders and Michael A. BAKER, 48 N.E.3d 1277 (Ill. App. Ct., 2015). In this case, Michael A. Baker appealed the trial court’s decision regarding property distribution and visitation rights with regard to his two dogs, Grace and Roxy, following his divorce from Kimberly K. Enders. The court found that because the dogs were left in Ender’s care following the divorce, she is the one who “keeps or harbors” the dogs and is therefore the owner. Ultimately, the court affirmed the trial court’s decision and denied Baker visitation rights.

Hament v. Baker, 2014 VT 39, 97 A.3d 461 (Vt. 2014). The custody of an eleven year old German wirehaired pointer was the central issue in this Vermont divorce case. While both parties testified to their strong emotional ties to the dog and to the care that each spouse provided, the Superior Court awarded custody to the husband. The wife appealed the Superior Court’s decision arguing that the court erred in refusing a joint arrangement.

Travis v. Murray, 977 N.Y.S.2d 621 (Sup. Ct. 2013). A short, childless marriage ended in a custody battle over a dachshund after one spouse allegedly took the dog while the other spouse was away on a business trip. After reviewing the progression of the law in New York and in other states, the court decided to apply a “best for all concerned” standard and to give the parties a full, one-day hearing. The plaintiff’s motion to order the defendant to return the couple's dog and to be awarded “sole residential custody” of the dog was therefore granted.

All Pets and Divorce Cases

Related laws

California (Cal. Fam. Code §2605 (West))

Alaska (AS § 25.24.160)

Illinois (750 Ill. Comp. Stat. Ann. 5/502)

New Hampshire (N.H. Rev. Stat. § 458:16-a)

Related Links

Links in the Web Center:

Pet Custody During Divorce (2009)

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