You May See Your Pet as Your Child, But Do Family Courts Agree?

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July 15, 2016 • 20,404 views

Story at-a-glance

  • Pets are technically viewed as “property” during divorce proceedings, but some judges are now ruling that pets are assets and deserving of separate custody hearings
  • If you used money you earned prior to getting married to purchase the pet or pay for its care, there’s a greater chance the judge will grant you custody
  • Other factors considered in pet custody hearings include the financial and emotional ability of each party to care for the pet and who has provided primary care of the pet in the past

By Dr. Becker

With about two-thirds of U.S. households owning a pet, and an estimated divorce rate of 50 percent among married couples, a considerable number of family pets may find themselves in the midst of custody disputes.1

Most pet owners view their pets as family, and with increasing numbers of Americans waiting to start families or enjoying pets well into their retirement, pets may actually take the place of human children. So when a couple decides to divorce, what happens to a beloved pet is often a source of serious contention.

Unfortunately, as far as the law is concerned your pet is a piece of property, not unlike a TV set or kitchen table. Even then, it can be difficult to place an objective value on a pet, as it's more of a liability in terms of costs of feeding and veterinary care than it is an asset, at least monetarily speaking.

Emotionally, of course, the life of a pet is priceless, and knowing their partner's love for a pet makes animals prime targets for manipulation and bargaining power. One person may attempt to keep the family pet just to spite the other or use such a threat to gain other assets.

Ultimately, it can be a sticky situation even in the best of circumstances, but getting informed can help you to make the best decision for everyone involved, including your pet.

Pet Custody Disputes on the Rise

Traditionally, courtrooms would not consider pets at individual custody cases the way they do for human children, but, according to the American Academy of Matrimonial Lawyers (AAML), the number of pet custody cases reaching courts is on the rise.2

Most cases (88 percent) involve dogs although cats are also involved in about 5 percent of custody disputes. Even disputes over the custody of horses, iguanas, snakes, birds and turtles have made it to the courtroom in divorce proceedings.

 The fact is that the legal system is beginning to acknowledge that pets hold more weight than inanimate objects and, although they can't legally be treated as human beings, deserve attention as living creatures.

An AAML survey revealed 27 percent of respondents noticed an increase in couples fighting over the custody of pets in recent years. AAML President Maria Cognetti explained:3

"While pet custody cases are not an everyday occurrence, far too many spouses attempt to initiate these disputes as a negotiating strategy, often believing that they can use the animal as a kind of bargaining chip.

This tactic is usually not effective and can come back to 'bite' the antagonist throughout the divorce process … When it comes to a pet, it is often obvious which of the spouses has the strongest emotional bond."

Top Factors Influencing Who Gets the Family Pet

It's often best to try to settle pet custody out of the courtroom, as once inside the judge will have a lot of discretion, which may work in your favor or against it.

However, if you used money you earned prior to getting married to purchase the pet or pay for its care (including veterinary bills), there's a greater chance the judge will grant you custody.4 Other factors courts should consider, according to the Animal Legal Defense Fund (ALDF), include:5

The physical safety and welfare of the pet

The capacity and disposition of the parties involved to understand and meet the needs of the pet, including providing the pet with necessary food, water, shelter, space and veterinary care.

The wishes of the parties involved as to the companion animal's custody.

The affection and other emotional ties between each owner and the pet.

The length of time the pet has lived in the home and whether it's desirable to maintain continuity.

Who has provided primary care of the pet.

The mental and physical health, character and circumstances of the people involved.

The willingness and ability of the people involved to facilitate and encourage a continuing relationship between the pet and the other party.

Any history of domestic violence or animal cruelty.

You Can Hire a Lawyer to Negotiate a Private Custody Agreement, but There's a Catch

If you and your former spouse cannot agree on who will care for your pet, you can hire a lawyer to negotiate a private custody agreement on your behalf.

However, even if an agreement is written up, be aware that a court may not take it seriously and it may be difficult to enforce. In addition, it can be expensive to go this route.

If possible, try to settle the dispute privately. Some former couples find that a joint custody agreement works out, with the pet spending, for example, one month with one partner and then one month with the other.

The feasibility of such an agreement depends on your locations and whether you're willing to continue seeing your ex for this purpose. In addition, it works better for dogs; most cats would find shuttling back-and-forth between two homes to be quite stressful.

In some cases, people have even written agreements that pets are transferred to their ex's house via a groomer or dog walker, which removes your having to maintain regular contact. If children are involved, you might also consider their wishes in staying with a family pet (or even consider having your dog travel back and forth along with the children).

That being said, if you decide on joint custody, be sure you've also ironed out who is responsible for veterinary care (including unexpected illness or injury) and who will make important decisions regarding your pet as necessary.

Are You Ready for Single Pet Ownership?

It's also important for each party to consider whether their new lifestyle after a divorce will still accommodate the family pet. Your financial situation is likely to change as may your living space and line of work. Will you be at home and available to care for your pet? Will you be travelling more often? Will you want to be the sole person responsible for the pet's care?

There are no right or wrong answers, but it's important to be honest with yourself about whether or not you will be the best choice to be the primary guardian for your pet. Ultimately, consider your pet's needs and well-being first — not those of you or your ex — in all pet custody negotiations.

Keep in mind that divorce is stressful for pets, too. The best home for your pet is the one with a stable, predictable routine and a responsible and loving guardian who's available to care for his needs.

[+]Sources and References [-]Sources and References

  • 1 Forbes April 17, 2014
  • 2, 3 American Academy of Matrimonial Lawyers February 12, 2014
  • 4 Bloomberg April 29, 2016
  • 5 Animal Legal Defense Fund, Custody of Companion Animals in Divorces