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Pet Custody and Divorce

By May 30, 2012May 15th, 2020No Comments4 min read

Divorce lawyers across the country have seen a dramatic increase in pet custody disputes over the last decade.  This is partly due to a shift in societal attitudes.  People have increasingly come to see pets as members of their family, deserving of affection and happiness, and whose presence in the home is essential to their personal happiness and the happiness of their children.  Because the law in all states still considers pets to be property, the problem of disputed pet custody and support has required creative legal solutions.

How Courts Handle Pet Custody Disputes

Although pets are considered property, their low dollar value and status as beloved family members means they cannot reasonably be sold and the proceeds divided in the same way as other property.  Rather, the court will either award custody of the pet to one party or craft a shared-custody or visitation agreement.  In doing this, most judges will consider:

  • Whether there are children who are attached to the pet.  In any divorce, the interests of the children usually come first unless it is obvious there is no way that the parent with primary custody of the children can adequately care for the pet.  For example, if the children are away at boarding school and the primary custodial parent is gone for months at a time due to their job, the court may award custody to the parent who is able to consistently and personally care for the pet.
  • Whether the couple agreed in a prenuptial agreement on who would get custody of the pet. Courts tend to honor these agreements, absent any serious reason not to.
  • Who owned the pet before marriage.  Absent children, this is important evidence that the pet is and always has been the separate property of one spouse.
  • Whether the pet was received as a gift or bequest to one spouse, again suggesting separate ownership of the pet by the recipient spouse.
  • Which spouse or domestic partner provided the most care to the pet during the marriage – that is, which one usually bought the pet’s food, fed the pet, walked the pet, played with the pet, and took the pet to the vet.
  • Which spouse is best equipped to provide for the pet after marriage.
  • Whether a sharing or visitation agreement is possible given the ex-spouses’ schedules and the location of their post-divorce residences.

Pet Custody or Sharing Agreements Reached Through Mediation

Fighting over a pet can become expensive.  If the spouses cannot agree between themselves, an experienced divorce mediator can work with them to craft an agreement for shared custody or alternating custody, with or without the children, or visitation rights to the pet on a schedule, possibly including visitation with the children.

Civil Pet Custody Disputes

Disputes over pets between persons who formerly resided together but were not married or registered domestic partners are handled in civil courts.  If the parties dispute who the pet should belong to, one or both parties can file a civil lawsuit claiming ownership or right to possession of the pet.  These suits are usually resolved by settlement agreement or mediation, due to the high cost of going to trial over pet ownership and possession.

Restraining Orders to Prevent Harm to Pets

California specifically allows a person to ask the court for a protective order (restraining order) to give them custody, control, and ownership of an animal to prevent harm or threatened harm to the animal by another person. This is usually part of a general restraining order to keep an abusive person away from the petitioner.  The law authorizes the court to “order the respondent [the other person] to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”

Call Minella Law Group for all Divorce Issues

The experienced divorce lawyers of Minella Law Group can help you with all issues of pet custody in divorce.  We craft pre-nuptial agreements specifying who will get a pet in case of divorce.  We also are able to file for pet custody as part of a property division in a divorce or domestic partnership dissolution.  We have the skills to negotiate pet sharing agreements, and to assist in mediation proceedings over pet custody.

For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

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