WHO GETS THE DOG OR CAT IN A DIVORCE?

Traditionally, courts have relied on an ownership model that still views animals as nothing more than personal property. This ancient view considers individuals who purchase animals as having sole possession over them. Pets are members of the family and are viewed as children to many. Animals have personalities, have the capacity to feel emotion, and think. They are social creatures that can have social connections and understand loneliness. They form attachments with their “parents” (human guardians). They are not much different than children. In fact, dogs and cats are domesticated animals that were bred to interact with humans and rely on us for their survival. More recently, the laws are slowly catching up with this sentiment. In the U.S. states such as California, Alaska, and Illinois have started to consider this societal value change in viewing animal companions, as family. These recently enacted laws are a reflection of this view.

As mentioned above, typically during a divorce proceeding, the family companion animal will go to the individual who purchased the animal and not the one who cares for them. American courts are beginning to realize that pets are similar to children and should be treated as such. In other words, American courts are beginning to consider what is best for the animal and not the divorcing parties. Several factors a court may consider when determining which party in a divorce proceeding gets awarded custody of the animal or if visitation will be allowed. Some factors include: who purchased the animal, who is the primary caretaker, and who will provide the dog or cat the best quality of life.[1] It is important to note that courts in one state may use a legal standard that is different than another court in another state when determining custody issues.

In 2017, Alaska became the first state in the country to pass a law which requires courts to consider the animal’s best interests above the divorcing parties’.[2] This advancement in the law is encouraging news for animal advocates nation-wide who share the same opinion; that pets are not property that can be auctioned for – but are creatures that resemble their children in many ways and deserve the best life that they can have.

This year, California followed in the footsteps of Alaska and signed their own bill, Assembly Bill 2274, which provides for a law that “changes the way pet custody is handled in divorce cases.”[3] Courts in California now have the ability to grant sole or joint custody of a pet and consider the well-being of the animal companion when doing so. Prior to this law, judges had been “creatively” coming up with solutions to make sure the animal is properly taken care of. In some instances, the judge would have the family dog placed between the “would-be owners and tried to determine who [the dog] liked the best.”³ Thankfully, with this new law, judges can more easily make an objective decision in bettering the lives of animals sitting on the fence of divorce. Pets are valued family members and they should be treated as such during divorce proceedings.

 

[1] ADLF. “What To Do If You Are Involved in a Custody Battle Over Your Companion Animal.” Animal Legal Defense Fund, aldf.org/article/what-to-do-if-you-are-involved-in-a-custody-battle-over-your-companion-animal/.

[2] Brulliard, Karin. “In a First, Alaska Divorce Courts Will Now Treat Pets More like Children.” The Washington Post, WP Company, 24 Jan. 2017, www.washingtonpost.com/news/animalia/wp/2017/01/24/in-a-first-alaska-divorce-courts-will-now-treat-pets-more-like-children/?noredirect=on&utm_term=.218994dbf1c6.

[3] CBS. “New California Law Allows Pet Custody In Divorce Cases.” CBS Sacramento, CBS Sacramento, 28 Sept. 2018, sacramento.cbslocal.com/2018/09/28/pet-divorce-custody/.