What are Dog Custody Laws?
Dog custody laws determine who gets to keep a pet after relationship separation or divorce. These laws take on added significance as more people consider their pets as full-fledged family members and the law begins to reflect changing societal norms. However, the law still treats pets as property when it comes to custody disputes.
These laws, which are not yet widespread in the United States, are already big news in countries such as France and Spain, and are beginning to crop up in other places from Canada to Israel and even the UK.
For instance, last year a dog custody battle in Ireland made headlines when a sister and brother reached an agreement in court about who would have custody of a Dachshund mix, named Jack. She gets him on weekends and he has him during the week. The agreement even stipulates that she pay her brother $2 per visit to cover the cost of his gas.
Under the family law steps taken in these countries, the pets are no longer regarded as pieces of furniture but rather valued as cherished companions. It is about time we treated pets as they deserve under the law.
Despite the progress in making shifts in the legal system, when you are filing for divorce you should not expect your state’s laws regarding how custody is determined for a pet to be clear-cut.
Currently in the U.S . , the law dictates any type of property, including an animal, leads to the question of who gets to keep what when relationships end. Most state laws only allow for animals to be awarded to the person who paid for the animal.
However, as custody laws and divorce proceedings progress, some judges in some states have begun to view pets differently than, say, a piece of furniture, which can be bought at a store, or a chair, which can be easily divided. Instead, pets are unique, and thus have become an additional factor for judges to weigh when awarding custody.
Some states are thinking of pets as if they were children in the eyes of the law. For instance, there is a "shared possession clause" law concerning pets in Alaska, Arkansas, Colorado, Kentucky, Massachusetts, Nevada, New Jersey, Ohio, Tennessee, and Washington.
The "shared possession clause (or provision)" says a judge can determine that a pet should spend six months with one partner and six months with another. Some states award custody to the partner to whom the pet is primarily bonded.
Deciding who gets the pet can become an litigation nightmare when you are going through a divorce. Consider what you have invested – genuine love and affection – in your pet. They are members of your family, so considerations entangled in your divorce or separation from your partner may be unsettling because of your strong emotional connection to your furry friend.
Factors Courts Use to Determine Dog Custody
In deciding pet custody, a court must first determine which state’s laws apply. The prenuptial agreement may not be honored. For example, despite a prenuptial agreement stating that the dog is marital property; the state law where the divorce is being sought may classify the dog as separate property and award it to only one divorcing spouse. If you purchased the dog before the marriage and it known to be your dog, it is your separate property – even if you now have joint custodian caretaker responsibilities and expenses to care for the dog.
If two people got married and bought a dog together, enjoyed the dog together, gave the dog a name together, performed training, and took the dog on outings together, the dog is likely marital property and the parties would both be joint owners of the dog regardless if they are joint caretakers or not.
Possession of the animal may not matter to the court. If one party uses the dog to emotionally manipulate the other party, the court may look at the manipulative behavior and recognize that the dog has been used by the manipulative party to "negotiate" for more than just the dog’s joint custody when the couple separates and the properties are divided.
If one party cannot make decisions regarding health care and other such needs, a court may grant that party with exclusive responsibility over the dog’s care.
In the event no prenuptial agreement is present and it is impossible to reach an agreement on pet custody among the divorcing parties, then the court will decide custody based on factors such as the pet’s welfare, which party acts as the primary caretaker of the pet, the living environments and spaces of each party, bonds and attachments the pet has with each person, and any instructions the owner may have given regarding who should get the pet should the owner die or become too disabled to care for the pet.
A board "opinion" from the editorial board of the Dade County Bar Association Defender, notes, "Most people love their pets very much and treat them as family members. They may wish to leave something to their pets in their wills-through trusts or otherwise. Even if not provided for in a will, at least pet owners know that, in the event of their death, their pets may have a chance of being adopted by their best friend or a good friend’s friend. Since Florida courts have not specifically addressed this issue yet, the approaches taken by courts of other jurisdictions, as well as public opinion, provide guidance for the future."
The judges will balance the interests of the pet against the overall financial situation of each party to determine who is most capable of providing a safe and financially stable environment for the pet and the rest of society.
Case law in the United States concerning the rights owners of pets seek from courts is strikingly varied. Pet custodians have sought relief from issuance of injunctive orders preventing persons from "stealing" their pets, restraining calendars so that fewer days are available for shared visitations, and overriding prenuptial agreements noting the pet’s ownership prior to the marriage. Court opinions range from dogs being considered property like a couch to dogs being considered partial owners resulting in damages awards for pain and suffering due to the loss of affection and comfort.
Legal Cases and Precedent
There have been several notable landmark cases regarding who keeps the family dog after the owners break up. In 1990, a California Court set the foundation for all subsequent dog custody cases to follow when it distinguished who owned the family dog by whether registered ownership was established or whether implied ownership was claimed in the absence of an official certificate. In In re Marriage of Enders, the court ruled, "Clearly the well-established rule is that the person who registers the dog, the person who makes all the decisions concerning the dog, is the owner. The fact that the dog is a family pet or is cared for by the parties does not create any presumption of joint ownership….It was not enough for the wife to establish the fact that she intended to be the owner of the dog without going through the formality of registering the dog in her name." Other divorces going forward were decided on these grounds, using ‘official ownership’ as a foundation in determining who received custody of the family dog. In 2001, a man and woman who had shared custody of their child brought their golden retriever ‘Boomer’ with them for their child’s birthday party. After the party, one party took the dog home leaving the other party with requests for visitation rights. The man and woman each went to court, but the presiding judge determined that the dog was property and that one party didn’t have the right to demand visitation from the other. The case was then appealed to the Supreme Court of New Jersey, who ruled in favor of the woman. The ruling was a landmark decision, allowing Courts to decide the custody of animals on a case by case basis, which would establish a significant precedent for the treatment of animals in the context of divorce laws in the following years. With the progressivity of the law evolving, in August 2018, an Auckland couple who share custody of zuo terriers Juno and Saga after they separated, shared a selfie of themselves holding their dogs outside the Family Court in Auckland. They want to get a legally binding order preventing the dogs from being taken from one another thanks to the eighteen month couple’s amicable relationship and their joint parenting agreement terms coming to an end. "Both dogs belong to both of us," said the mother, who commented that they were heading to the courts to enforce shared ownership of pets in response to emails sent by her ex demanding that she return the dogs. She added, "They’re easier to deal with than kids." The judge casually decision was made informing the couple that if they are unable to "bi-parent" their pets between them they would be required to pay $10,000 and have the court decide who is responsible for "parenting" the dogs. As the "bi-parents" of Juno and Saga, the couple will only have to pay $300. The legislations that now cover animals as sentient beings also require "Occupiers Liability, Animal Welfare, Dog Control and Dog Registration, and Dog Control Bylaws which must provide for the appointment of suitable, trained and competent animal control officers."
Preparing for a Dog Custody Trial
Divorce is not a pleasant process and when you throw in the myths, misunderstandings and legal misconceptions that arise with regard to the custody of your dog, it becomes even more difficult. The following are a few steps that you can take to increase your chances of winning a custody battle over your dog.
When a couple separates, it is always helpful to have proof of who really took care of and paid for the dog. Collect any and all invoices that you have paid for food and/or vet bills. If you do not have all of the invoices, go through your bank statements and compile a list of purchases from pet stores. If you do not have all this information, it is not the end of the world. If you find yourself in the middle of a dog custody dispute, do not leave the marital home unless you have first consulted with an attorney. The attorney will be able to advise you as to whether it is a good idea to take the dog with you or leave the dog in the home. There certainly are strongly held opinions on both sides of the issue.
The most important thing that you can do to increase your chances of getting custody of the dog is to keep a record of what you do with the dog in the time leading up to the divorce. This is a record of all the care your dog received while you were living together. You should note who walked the dog , who purchased and filled the dog’s food dish, and who took the dog to the vet. Make this log up to date and include every interaction that you have with the dog up until you separate from your spouse. You should also keep receipts for any and all purchases made for the dog in addition to your log.
Another step that you may take in establishing which spouse has primary care of the dog is creating a pet parenting plan. Write out a brief outline of who will have ownership of the pet, when each parent will have the dog in his or her care and how the dog will be taken care of throughout the day, week and year. Taking these additional steps will only work in your favor when you go to court regarding primary care of the dog.
Your actions in the days and weeks leading up to and during the divorce will weigh heavily in a judge’s decision. Take care of your dog and remain involved in the dog’s life. There is no substitute for good evidence.
Mediation and Alternative Settlements
Mediation or other Alternative Dispute Resolutions are often a good option to preserve the feelings that you have for the pet, and to move on with your life in the best way possible. These methods may also ensure that the pet receives the type of care both parties feel is best and can save a ton of money. Basically, both husband and wife hire a mutually agreeable third party – a lawyer or paralegal to act as a mediator – to try to come to an agreement outside of the courtroom. You will sit down with the mediator and a schedule can be agreed upon that allows for either spouse to have time with the pet. Many times, all that is needed is an agreement that simply states when the pet will be in each house. An agreement can also be reached regarding what happens if an owner relocates.
There is no one-size-fits-all approach to this issue. If you and your spouse have a cooperative relationship, it is often worthwhile to explore this approach. If you are certain your spouse will not abide by the agreement, it may be better to proceed through the court.
Impacts of Pet Custody Disputes
Just like children, pets are impacted by divorce and custody disputes. Divorcing pet owners and custodial parents experience many of the same stresses that parents of human children experience. In addition, courts, lawyers and social services personnel are asked to resolve custody issues concerning animals that are beloved family pets ("fur babies").
For the pet owner, the divorce or custody dispute can be one of life’s most stressful experiences. Pets are usually part of the family. In terms of parenting, courts analyze the "best interest of the child" in custody disputes involving minor children. The "best interest" of a pet hurt or abandoned, left behind or abandoned, unloved and uncared for – who sees their interests? A custody court can appoint an ad litem (attorney) for the pet, but a custody court is not a veterinary hospital or kennel , nor is the ad litem a veterinarian or kennel manager. Who sees the interests of the pet? The court can assign temporary custody to one of the parties or to animal control while charges of neglect or abuse are pending. The court can order supervised visits with the party not granted custody. Adlitems are only as good as the resources available to them. In Shelby County, the Memphis Pet Hospital has agreed to house and care for pets until the final custody hearing is held or until ownership is resolved to the satisfaction of the court. In the interim, a hearing date to resolve the issue is set at the earliest possible court date.
If the pet is not properly cared for by the person holding custody, or left to languish and suffer alone, the court will order animal control to take custody. Animal shelters often run out of capacity. Adlitems will often call volunteers to foster the pet temporarily, if available, until the final hearing. Like children, pets often experience long-lasting psychological trauma.