Pet Custody in Divorce


Pet Custody in DivorceWho gets pet custody in a divorce? It might surprise you that the law has not caught up with how people feel about their pets today.

Most pet owners consider their dogs and cats to be family, while the law considers them to be property, like cars, furniture, and other belongings.

Legal Progress About Pet Custody Is Slow

A few judges have begun recognizing that pets have a unique and cherished place in the family when deciding a custody dispute. Some state legislators are floating the idea of changing the law to require consideration of the pets’ best interests when determining custody.

On the other hand, dogs, cats and other pets are not children. Already burdened divorce courts are reluctant to devote the time, expense, and resources to conduct proceedings that mirror the complexity of a child custody case.

Your Separation Agreement Is Your Best Tool

A 2014 survey from the American Academy of Matrimonial Lawyers (AAML) found a 27 percent increase in the number of couples who have fought over custody of a pet during the past five years.

As it is with most issues in divorce, it’s best that you and your spouse work out custody of your pets between yourselves and document your decisions in your separation agreement. If the issue goes to litigation, the judge may focus on existing law rather than what’s best for the pets. Proof of purchase or adoption of the animal may be what the judge bases his/her decision on.

Note, however, that the courts cannot enforce pet custody agreements because there is no applicable law yet. There is a possibility of using small claims court to obtain funds promised for veterinarian bills or other needs. As of this writing, it appears that court would not address other issues that fall under the concept of custody. It’s best to contact the appropriate small claims court office for information before proceeding.

For example, here in Rochester NY, small claims court is part of the NYS Unified Court System, 7th Judicial District. As shown on that page, there are several restrictions which may limit this court’s usefulness to you, including:

  • You must bring the action in the county where the defendant resides, is employed, or where he/she is doing business at the time you commence the action. You also have the option to sue in the Town or Village Court where the defendant resides, is employed, or is doing business.
  • There is an upper limit on the amount of money you can sue for.

Pet Custody Issues to Consider

You and your spouse can decide whether to pursue sole or a shared animal custody arrangement by considering the following points:

  • Who usually took on most of the responsibility for meeting the pet’s needs (i.e., feeding, walking, grooming, vet visits) when the parties lived together?
  • Who spent more time on a regular basis with the pet?
  • What arrangement is in the best interest of the pets in question?
  • Who wants custody now and how close will the parties live to one another to share custody?
  • Are children involved, and if so what is their attachment to the pets? Would it be in the best interest of the children to keep the animals in their lives? How can this be fairly accomplished?

Custody issues worked out in a parenting plan for children are a good starting point for coming to agreement about your pets:

  • Where will the pets live. If in both homes, when and how the transition will occur. How long will the pet stay with each person.
  • How veterinarian-related visits and pet medical expenses and comfort care will be handled.
  • Who is responsible for food, toys, bedding, carrying cases, “day care” or pet-sitting services while the pet is in each home.
  • Many separation agreements include the option of right of first refusal. If the primary pet owner is no longer able to care for the pet, custody will be given to the other party.
  • Separation agreements also consider a formal visitation schedule and a commitment by the secondary owner to care for the pet (rather than put it in a kennel) if the primary pet owner goes out of town.

Pets Are Family

Conflicts over a pet can be just as important to divorcing spouses as any issue when both spouses have developed a special connection to a companion pet and wish to maintain it.

As the social status of animals changes from property to family member, the likelihood that divorce laws will expand to include guidelines increases. For now, mediation generally provides the best process to consider all points of view regarding where the pets will reside.

The more courts start to view pets as something beyond property, the more amenable they will be to allowing couples to create and enforce custody plans.

Divorce and Pet Custody Resources

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This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as, legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.