Addressing the Issues of Pet Custody During Divorce
by Mary Melech
Consider the following: A couple meets, gets married, and adopts a companion animal. All is well…until it’s not, and then one party files for divorce. What happens to their pet?
This is an all too common dilemma and the answer is that it depends.
The easiest resolution occurs when one party acquiesces to the wishes of the other. Often, the responsibilities associated with pet ownership will deter the less interested party from pushing the issue. In addition, considerations regarding the pet’s welfare will hopefully persuade the parties to develop and effect the best solution for the animal.
The scenario becomes more complicated when both parties want custody of their pet. To be clear, in California, the term “pet custody” is a misnomer. No matter how antiquated it seems to those who love animals (author included), companion animals are treated as personal property under prevailing legal opinion. The perspective offered by Joyce Tischler, the Director of Litigation for the Animal Legal Defense Fund, is grimly apropos: “In the eyes of the law, they are really no different than the silverware, the cars, the home.” This means that if a couple adopts a pet during the marriage, the animal is considered community property, and each party has an equal “interest” in the pet.
Fortunately, many courts have adopted a more humane and conscientious approach when considering this issue. When a divorcing couple becomes embroiled in a bitter “pet custody” dispute, the court will often look to a variety of factors in determining which party should receive custody of the animal, including, what is in the best interests of the companion animal, who has current possession, who has the means to properly care for the pet, and, if there are children, what is in the best interests of the kids in regard to companion animal placement.
Family law litigants should avoid using the pet custody issue as a “power play” move to keep the other party from winning possession of the animal. This type of conduct reflects poorly upon the antagonistic party, and may affect how the court determines other issues in your case, such as child custody and visitation. More importantly, it is not in the best interests of your companion animal. Just don’t do it.
Pet owners should remember that divorce causes stress for all involved, including their companion animals. Watch for behavior changes in your pet, including, loss of appetite, loss of energy, increased incidence of accidents, etc., and show your furry friend some extra love during this difficult period. The companionship will be healing for the both of you.