When a couple divorces, children are not the only subject of custody battles, as family pets often become the center of a dispute. While there are plenty of laws surrounding child custody, all of which take the best interests of children into consideration, pet custody laws deal with property.
Unlike children, pets are considered personal property, rather than the valued family members their families see them to be. Most states use the same principles used in distributing property to determine who retains ownership of a pet, and visitation is rarely awarded by the court. Because most people do view their pets as part of the family, some jurisdictions are working toward creating laws that govern pet custody. To explore this concept, consider the following pet custody definition.
Definition of Pet
- A domesticated or tamed animal kept for pleasure or companionship, rather than utility, and treated with affection.
Circ 1st Century Irish Gaelic peata (tame animal)
The Court and Pet Custody
People going through divorce often ask the court to assign custody and visitation of a family pet. The law, however, does not allow the court to make such an order. In most states, the court may make an order as to ownership of the pet as property, but could not order any type of visitation rights to the other spouse. Neither can the court take the pet’s best interests into account in making such a property ownership decision.
Creating a Pet Custody Agreement
When a couple breaks up, the relationship is often tense, and sometimes downright volatile. Unfortunately, just as children get caught in the crosshairs, the same can be said for pets. This is especially true if one spouse seeks to keep the pet simply because he or she believes it will hurt the other. Because the court cannot make a determination based on what is in the pet’s or family’s best interest, it is best if the couple can work out a pet custody agreement on their own.
When determining which spouse should keep the pet, both parties should ask themselves who can take better care of the animal, who has more time to spend with the animal, whether there are children with whom the animal has a close bond, and what is best in regards to the animal’s emotional and physical health. Other issues that should be considered in a pet custody agreement include:
- Who provides basic care for the pet such as feeding, bathing, exercise, and supervision
- Who spends the most amount of time with the animal
- Who oversees the animal’s health
- Who can support the animal financially
Any custody and visitation arrangement the couple agrees to can be put into a legally binding written agreement or contract.
Shared or joint custody is commonly used when referring to child custody cases, but it can also pertain to situations where neither party in a divorce is willing to give up their pet. Shared custody is just that, a sharing between two parties. Sometimes the custody is split 50/50, so that each spouse has an equal amount of time with the pet, but any shared time arrangement may be agreed to.
While this may seem, on the surface, like a good scenario for all involved, shuttling a pet back and forth can have consequences, as it can cause the animal emotional distress. It also places a burden of time and responsibility that is difficult for some people to maintain over time.
Another scenario involves multiple pets in the same family. In creating a hybrid custody arrangement, the parties may choose to “distribute” the pets amongst themselves. While this is a rare choice in child custody, it can be an excellent solution in pet custody situations. For example, if Bob and Mary have two dogs when they file for divorce, they may decide to each keep one of the dogs, so neither party must completely give up their pets.
Pets as Property
In an ideal world, a couple would agree on pet custody in order to reduce tension. In reality however, it is common for the pet-owners to disagree on who will retain ownership of the pet, and the court must make the decision for them during a hearing. Commonly courts treat the issue the same way they do the home, the furniture, and other property. This means the court will use the law of equitable distribution and divide the property fairly.
In doing this, the court may lump the monetary value of the pet in with the value of the rest of the marital assets, then divide the assets equitably. In certain jurisdictions when one spouse can show that he or she alone adopted and cared for the pet, the court may view that spouse as the true owner, and allow him or her to maintain ownership. The court may also consider whether children of the relationship have bonded with the pet.
Animal Legal Defense Fund
Organizations such as the Animal Legal Defense Fund (“ALDF”), are working to change the fact that pet custody laws consider all animals to be property. The organization believes that a person’s relationship with his pet is much different from his relationship with items of personal property, such as furniture or automobiles, and that the law should recognize it as such.
The ALDF holds more than just an interest in pet custody cases, as the organization works to protect the other rights of animals in the U.S. legal system. For instance, they have fiercely campaigned for stronger anti-animal cruelty laws, and have provided legal assistant to attorneys handling cases involving animals.
Some pet custody situations seem clear cut. For example, if one spouse owned the dog before they got married, it often makes sense that he keep the dog after separation.
Related Legal Terms and Issues
- Contract – A written or spoken agreement between two or more parties that is enforceable by law.
- Equitable Distribution – In divorce law, the distribution of marital assets between the spouses in a fair, though not necessarily equal, manner.
- Marital Assets – All property and financial assets acquired by a couple during the course of their marriage.
- Personal Property – Any item that is moveable and not fixed to real property.
- Visitation – Formal visits as permitted by a court order.