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Pet Custody

What is Pet Custody?

Many people consider pets more than just property; they may regard them as family members. When two people are getting divorced or are separating, there can be an issue as to who gets to keep the pets.

Pet custody refers to the issue that arises when more than one person claims ownership of a dog, cat, or other household pet. Pet custody occasionally leads to a conflict about ownership and custody rights.

Currently, according to pet ownership laws, pets are viewed 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 an exchange of items of property or money. Thus, courts have increasingly been willing to entertain the concept of pet custody arrangements in the event of divorce or separation.  

Is Pet Custody Treated the Same Way as Child Custody?

Legal custody of a pet is not the same as child custody. As noted above, in the eyes of the law pets are not the same as people. Although almost every pet owner may treat their pets like children, under the law, they are almost always recognized as personal property. 

So, when a relationship ends, or a couple divorces or separates. and they do not agree on the ownership of the pet, the pet custody issue is treated as a dispute over possession of personal property.

Pet custody issues may also arise from natural disasters and other such exceptional events. For example, in the wake of Hurricane Katrina, many of the affected cities' animal residents were rescued and relocated to shelters across the country, due to the sheer number of animals that became separated from their owners.

Those pets were then adopted by other well-intentioned 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?

A couple can certainly resolve a pet custody issue by coming to an agreement on their own. Once again, pets are treated as items of personal property, meaning that when a relationship ends, pet custody can often be determined by a written agreement alone. For instance, in child custody cases the judge always makes the determination as to the custody arrangements for the child, guided by the standard of the child's best interest.

However, many judges in multiple jurisdictions will consider written legal agreements, such as a premarital agreement or an agreement regarding the distribution of property, when considering the issue of pet custody. Thus, it is in the best interest of a person worried about pet custody to either agree about the issue when the pet is acquired or in a separation agreement (if possible) to avoid a lengthy and costly legal dispute. In the end, if spouses write out an agreement, then it is very likely that the court will honor that agreement.  

How Does the Court Determine Pet Custody?

As in cases involving disputes over the division of  property, judges in many jurisdictions first determine whether a pet is community property or separate property. A pet is considered community property if the pet was acquired during the relationship.

If the pet was acquired before the inception of the relationship or given as a gift to one person during the relationship, the pet is considered separate property. If the pet is viewed as separate property, in most states, this means that the pet will be awarded to the person who acquired the pet or was given the pet as a gift.  

If the pet is found to be community property, then the judge will determine who should be awarded the pet by taking into consideration various factors including:

  • Which party is better equipped to care for the pet;
  • Which party has played the role of primary caretaker of the pet, e.g., feeding, cleaning, walking, taking to veterinary appointments, etc.;
  • Whether there is evidence of neglect or abuse on the part of one of the individuals towards the pet;
  • What are both the individual's work and personal schedules and how they could accommodate pet care:
  • Whether children are also involved in the pet custody dispute;
  • Whether the children have a close relationship with the pet; if so, a judge will likely award the pet to the person who has primary custody of the children, because most judges tend to keep the children and pets in the same household.

This list is similar to a list of factors a judge considers in a child custody dispute, because pets are becoming like children. Some courts are changing the way they analyze pet custody dispute cases and are using factors similar to those of a child custody case in deciding custody. At the very least, the majority of judges are probably willing to recognize that a pet is something more than a mere piece of property.

Additionally, some courts have begun to award shared custody, visitation and in rare cases alimony payments  to pet owners. To date, most of these court cases have involved the custody of dogs.

For example, judges in both Texas and Alaska have created visitation schedules for the pets of former spouses. In one extreme case, a San Diego couple fought over custody of their dog “Gigi,” with the wife spending over $100,000 to prevail in her pursuit of custody.

Lastly, it is important to keep in mind that because pets are considered personal property in almost all states, failure to respect a court ruling and turn the pet over after a separation may result in jail time, fines, or both. 

Unless a person can agree upon an amicable sharing agreement with another interested person, whether a spouse, wife, husband, girlfriend, boyfriend, partner, etc., the person will probably have to go to court to arrange a visitation schedule in the event of separation or divorce Since the pet cannot be physically split, a court may order the prevailing party to “pay-off” the other party.

A pet custody agreement is made when people who buy or adopt a pet enter into a contractual type of agreement that details the pet care responsibilities and ownership interests. As noted above, pet custody agreements are the best way to avoid potential disputes involving the custody of the pet in the event of a divorce or separation. 

A pet custody agreement can also help a couple lay out the expenses associated with pet ownership and who is obligated to pay these expenses. So when a couple acquires a pet, they might want to devise an agreement, something like a prenuptial agreement, regarding what will happen in the event of separation or divorce.

Should I Hire an Attorney If I Have Issues with Pet Custody?

If you find yourself in a situation in which you have separated from someone and have issues regarding pet custody, you should consult an experienced child custody lawyer. A child custody lawyer can provide pet legal advice. An experienced child custody lawyer could also help a couple draft an agreement with a custody plan in the event of separation or divorce.

An experienced child custody lawyer can help guide you through the ever changing field of pet custody law, and represent you in court, if necessary. You are most likely to get the best possible outcome if you have an experienced lawyer representing your interests.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.