Pet Custody: An Analysis of the Pet Distribution in the United States

February 4, 2021Zihao Yu

Introduction

Companion animals are an important part of human beings and families. People build an emotional connection with their companion animals and treat the companion animals as their friends or family members. However, when the relationship changes between human beings, the ownership or custody of the companion animals becomes a problem, because the nature of companion animals are recognized as property in most jurisdictions. This article will analyze the legal issues of the custody of companion animals.


The distinctions within the current legal framework

The relationship can be other than marriage

The custody distribution is not the same with babies as the owners do not have to be in the relationship equal to “marriage”, which means the distribution may occur between roommates, housemates, cohabitants, etc. If so, the rules of divorce will apply in these cases.


Companion animals are not baby

Most courts have rejected such a model, basing their reasoning on the property status of companion animals. “A dog is a personal property and while courts should not put a family pet in a position of being abused or uncared for, we do not have to determine the best interests of a pet. On the other hand, while the analysis has differed from the traditional model (employing no factored test), some courts have, in a round-about way, certainly allowed the companion animal’s best interest to enter their decisions as to which human caretaker should be awarded custody. In Pratt v. Pratt, the court held that the best interest standard for children is inapplicable to dogs.

More to read here.

"A lovely couple with two dogs" by freestocks.org is marked with CC0 1.0

Legal issues

Custody determination

“The current laws provide for the companion animal to be treated as personal property, and its home determined based on property laws as part of the marital estate. Societal needs are trending toward a rejection of this treatment, and different approaches are being petitioned before courts; some judges are making exceptions and expanding the common law as a response, while others outright reject the requests, usually based on a lack of authority to make an exception to the property treatment.” (Read more here).


According to most of the current legal systems, companion animals will be treated the same as the personal properties, and the custody determination will be made based on the rules for divorce cases. However, the companion animals are gradually recognized as “pets”, a special type of personal property, and more specific rules are being applied to them, such as the “best interest approach”. The “best interest approach” was used for custody determination for babies, so some judges refused to apply this approach to non-human animals.

The courts may consider the following factors generally to solve a companion animal custody dispute:

  • Who paid for the dog (and is there evidence of payment)?

  • Who pays for the day-to-day care of the pet, such as food, doggy daycare, vet bills, or other services?

  • Who spends time with the dog?

  • Is there a history of animal abuse?

  • Will seeing the pet less affect the human children in your custody?

  • What are the best interests of the animal (does the dog prefer the company of one owner more than the other)?


“To win a pet custody fight, the most important thing you will need to show is that you spent the most on your pet. Gather any evidence you have of bills you have paid, time spent with your pet, and other factors that show you have put the most money and time into your pet and their well-being.” (Read more here).


Visitation and Shared Custody Arrangements

In some cases, judges allow the party without the custody to visit the companion animals or have the shared custody based on the agreement. “Some courts will take the case and make a decision. However, the decision is usually one person having full ownership or "custody." Few judges will rule on a visitation arrangement.” The attitude on this issue varies with jurisdictions, here are some of the examples. In Lanier v. Lanier, the judge granted joint custody of the dog, ordering a switch in custody every six months (an order the wife violated by moving to Texas). In Juelfs v. Gough, the husband and wife had agreed to share ownership of their dog, which the lower court incorporated into its order. In Arrington v. Arrington, the court classified companion animals as personal property but for which visitation should be allowed. In Desanctis v. Pritchard, the trial court dismissed a couple’s complaint asking it to enforce a settlement agreement that provided for shared custody of the dog.


Valuation

Once one party gets full custody of the companion animals, the other party may have the ability to get some compensation for the loss or have to pay for the fees for the animal cost. The major issue will be how much the companion animal is. The price cannot be based merely on the “fair market value” as some of the companion animals do not have a high market value as their value to the owners. The “emotional value” approach is taken into consideration to decide the valuation of the companion animals by some courts.

Photo by Zen Chung from Pexels

Regulations in different jurisdictions

Some states laws in the United States

Alaska, AS § 25.24.160: Alaska became the first state to allow judges to provide for the “well-being” of pets in divorce actions. Governor Bill Walker signed HB 147 into law in October 2016 and becoming effective on January 17, 2017. The law amends AS 25.24.160 contained in Chapter 24 on Divorce and Dissolution of Marriage. The amendment states: “[i]n a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide . . . (5) if an animal is owned, for the ownership or joint ownership of the animal, considering the well-being of the animal." Courts in most states have limited awarding pets in marriage dissolution based on traditional property classifications with only a few cases considering a pet's "best interests." This law is unique in that it gives the judge the authority to go beyond a traditional property paradigm for pets when dividing marital property.


California, West's Ann. Cal. Fam. Code § 2605: Effective January of 2019, a court may enter an order, at the request of a party, for a party to care for the pet animal prior to the entry of a final order. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for the legal separation of the parties shall not have any impact on the court's final determination of the ownership of the pet animal.


Illinois, 750 I.L.C.S. 5/452; 750 ILCS 5/501 - 503: Effective January 1, 2018, the Illinois Legislature amended several provisions under Act 5, the Illinois Marriage and Dissolution of Marriage Act. One change made it mandatory for the court to take into account the well-being of the companion animal under petitions for Temporary Relief.


Under the Joint Simplified Dissolution Procedure, the amendments added the following requirement to the conditions that must be present to do a simplified dissolution: "(k) The parties have executed a written agreement allocating ownership of and responsibility for any companion animals owned by the parties. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act."


Under Part V, "Property, Support and Attorney Fees," three sections were amended (5/501, 5/502, and 5/503). Most notable is Section 5/501, which deals with temporary relief. Amendments in 2018 added subsection (f): "Companion animals. Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal."


New Hampshire, N.H. Rev. Stat. § 458:16-a: In August of 2019, a new provision was added to the divorce laws related to animals (Subsection II-a). This subsection states that "[t]angible property shall include animals. In such cases, the property settlement shall address the care and ownership of the parties' animals, taking into consideration the animals' wellbeing."


Uniform Law: Uniform Marriage & Divorce Act. Section 307. Part III Dissolution. Section 307 Disposition of Property.


Read more on state laws here. More case law here.


China

Attorney believes that there is no precedent for Ms. Wang’s appeal in China, and there is no legal requirement. From a legal point of view, there is no concept of "pets." If pet lovers cannot reach an agreement and rise to the stage of litigation, the court can only consider the distribution of marital property for mediation. If the mediation is unsuccessful, a hard judgment will be made.


During the mediation stage, the court will usually consider the environment and conditions of both parties to see which party is more suitable for raising pets. The party that obtains pet custody can also ask the other party to give discount compensation based on the pet's market price or use other physical property for corresponding compensation.


The attorney said that pets are not related to humans after all, and it is difficult to expect domestic laws to establish special judicial interpretations for pets“custodial rights” and “visiting rights” from a humane and emotional perspective. There are debates on whether the custody of companion animals shall be sentenced.


Some think this will ensure the rights of both of the parties. Pets are the common property of the divorced parties, and both parties have invested their feelings in them. If one party is not allowed to exercise the "right of custody" or "visiting rights," it will cause emotional pain to them; instead, these rights are included in the judgment, which helps protect the realization of the rights of the plaintiff and the defendant.


Some disagree and think the scope of the law should not be expanded. If the pet’s “custodial rights” and “visiting rights” are included in the judgment according to the requirements of the parties, the scope of legal protection will be expanded. The consequences of this expansion will be serious. If the party asks for protection, the law protects what, then this law is no longer a national law, but becomes the party’s own law.


Read more here.


Conclusion

Generally, companion animals are legal things but they are a special type of property as they are living and with a strong emotional bond with people. The law shall not treat them the same as a baby nor a desk. The rights of the owners shall be protected and at the same time, a better arrangement shall be better for the protection of the best interest of animals. However, this opinion is not accepted by some courts and jurisdictions yet. With the trend of more and more people keeping companion animals in developing countries, the law would change upon the needs of the society.

➦ Share