Many people consider pets more than just property, treating them as family members. Thus in the event a dispute arises, such as two people getting divorced or separating, often times the issue of pet custody also arises about who gets to keep the animals.
Pet custody refers to the issues that arise when more than one person claims ownership of a dog, cat, or other small animal. Issues of pet custody occasionally lead to a conflict over ownership and custody rights.
Currently in the eyes of law, pets are classified as a personal property just like other tangible property, such as a car or furniture. However, similar to a rare painting or an expensive piece of jewelry, there is great sentimental value attached to the pet that cannot be replaced with money or another item. Thus, courts have increasingly been willing to entertain the idea of a pet custody arrangement.
Is Pet Custody Treated the Same Way as Child Custody?
In short, no. As noted above, in the eyes of the law pets are in no way similar to people. Although nearly every pet owner may treat their pets like furry little children, under the law they are nearly universally recognized as personal property.
This means that pet custody issues that typically arise when a relationship ends, a couple divorces, or a couple legally separates, and the couple does not agree on the ownership of the pet, are treated as disputes over personal property.
Pet custody issues may also arise in disasters and other extraordinary circumstances. For example, in the wake of Hurricane Katrina many of the affected cities’ furry residents were rescued and relocated to shelters across the country, due to the sheer number of animals.
Those pets were then adopted by well meaning and generous families. However, once the affected families started to recover from the disaster, many sought to get custody of their pets back, causing numerous pet custody disputes.
Can My Spouse and I Agree in Writing as to Pet Custody?
Yes, you absolutely can and you should! Once again, pets are treated as personal property items, meaning when a relationship dissolves, pet custody can often be determined by a written agreement alone. For instance, in child custody cases the judge always has the final word as to the custody arrangements of the child, guided by the child’s best interest.
However, many judges in multiple jurisdictions will consider written legal agreements, such as a premarital agreement or a partition agreement, when considering the issue of pet custody. Thus, it is in your best interest if you are worried about pet custody to either agree about the issue beforehand or in a separation agreement (if possible) to avoid a lengthy and costly dispute. In the end, if you and your spouse write out an agreement and can stick to it, then it is very likely that the court will honor that agreement.
How Does the Court Determine Pet Custody?
Similar to cases involving complex property disputes, judges in many jurisdictions first determine whether the animal is community property or separate property. A pet is considered community property if the pet was acquired during the relationship.
On the other hand, the pet is considered separate property if the pet was acquired prior to the relationship or gifted to one individual during the relationship. If the pet is considered separate property, in many states this results in the pet going to that person. However, if the pet is considered community property, the judge will then take into consideration various other factors including:
- Which party is better suited to care for the pet?
- Which party has played the role of primary caretaker of the pet (feeding, cleaning, taking to veterinary appointments, etc.)?
- Is there evidence of neglect or abuse from one of the individuals towards the pet?
- What are both the individuals work and personal schedules?
- Are there children also involved in the pet custody dispute?
- If so, do the children have a close relationship with the pet? If so, a judge will likely award the pet to the primary caretaker of the children, as almost all judges are inclined to keep the children and pets in the same household.
You may be thinking to yourself: “This list looks awfully similar to factors a judge considers in a child custody dispute.” You are right. Because pets are becoming such a big part of many peoples lives, some courts are changing the way they analyze pet custody dispute cases, and are using factors similar to that of child custody dispute cases in deciding custody.
Further, some courts have began to award shared custody, visitation, and in extreme cases alimony payments to pet owners. To date, most of these court cases have been regarding the custody of dogs.
For example, courts in Texas and Alaska have both had cases where judges created visitation schedules between former spouses involving their pets. One extreme case was a San Diego couple that fought over custody of their dog “Gigi,” with the woman spending over $100,000 in legal funds to prevail in her argument for custody.
Lastly, it is important to know that because pets are considered personal property in nearly all states, failure to turn over the property after a separation may result in jail time, fines, or both. Unless you can agree upon an amicable sharing agreement with your ex (albeit a spouse, wife, husband, girlfriend, boyfriend, partner, etc.), you will probably have to go to court to arrange a type of sharing schedule. Since the pet cannot be physically split, a court may order the prevailing party to “pay-off” the other party.
Other courts will help you to arrange a pet custody agreement. A pet custody agreement is made when people who buy or adopt a pet enter into an agreement that details the pet care responsibilities and ownership interest.
As noted above, pet custody agreements are the best way to avoid future disputes involving the custody of the pet in the case of a divorce or other legal battles. A pet custody agreement can also help a couple lay out the pet’s expenses and who is obligated to pay for the pet’s expenses.
Should I Hire an Attorney if I Have Issues with Pet Custody?
If you are finding yourself in a situation where you have separated from someone and are having issues regarding pet custody with no chance of a mutual agreement as to the custody of your pet in sight, then you should absolutely consult an experienced and well qualified child custody attorney.
An experienced family law attorney can help guide you through the ever changing field of pet custody laws, and even represent you in front of a court of law, if necessary. Likely you are already consulting or actively seeking an experienced family law attorney to assist you with other aspects of your separation.