Americans love their pets. For many people, pets truly become a part of the family. What happens to beloved Fido when a couple decides to divorce?
As of January 1, 2019, California has a new law in place to help families and courts address this issue. Governor Jerry Brown recently signed into law Assembly Bill 2274 which authorizes the courts in divorce cases to assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. Assemblyman Bill Quirk introduced the law, stating “it’s time family pets received the status they deserve – family members.” With this new legislation, the treatment of pets is becoming ever more like that of children.
According to traditional law in most jurisdictions, a pet is considered property and is divided similarly to a piece of furniture or other asset. This translates into courts focusing on ownership and the monetary value of the pet animal. A number of states have moved to change this, with California very much willing to take the lead in expanding social jurisprudence – first in our courts and now through legislation.
After a year of bitter divorce proceedings, in 1983 a California court granted joint custody of the family pet, Runaway. The court’s reasoning was that Runaway was a “child substitute” and needed to be dealt with in accordance with California’s child custody laws. In Minnesota, a couple was ordered to share joint custody of their dog. When the ex-husband failed to return the dog at the scheduled time, his former spouse filed for an emergency order. Surprisingly, the Court responded in the same way that it would in a failure to return a child from scheduled visitation, namely by sending a deputy to the ex-husband’s house to enforce the order.
The issue of pet custody touches many American families. In 2014, the American Academy of Matrimonial Lawyers conducted a national survey and found that the vast majority of pet custody fights – 88% - involved a family dog. Cats were the source of pet custody fights in only 5% of the cases. Surprisingly, 6% of pet custody disputes involved “other” animals, which included an iguana, python and a 130-pound turtle. One other study found that judges seem predisposed to grant pet custody to women, with an estimated 81% of the rulings going in favor of the wife and visitation rights being awarded to the husband in a meager 11% of the cases. Perhaps California’s new legislation will level the playing field.
I have seen cases where custody of the pet family was hotly disputed, and we have had to come up with other ideas to resolve the dispute. Quite honestly, when a couple really can’t agree and tensions are high in the case (for example, cases fueled by extreme ill will, spite, and anger), the issue is more often than not resolved by one spouse giving up a significant financial right in order to keep the family pet. This hard and shrew bargaining is coincidentally known in the field as “horse trading,” regardless of whether an animal is involved.
With one couple who really couldn’t agree about their dog, they ultimately agreed to decide the issue by flipping a coin for Fido. An unfortunate situation arose with a divorcing couple suffering from “burn down the house” mentality. You may have witnessed this mentality with other people: it's where if one or both can’t have the house, they would rather burn down the house (or give the equity to lawyers to fight about the house). In this highly charged case, they decided to simply re-home the dog. Re-home has somehow become a way to describe someone giving a pet to a third party or even a rescue shelter.
In one documented case in San Diego, a couple became embroiled in a two-year legal fight over the ownership of their pointer/greyhound mix Gigi. It ended up costing them $200,000 (not to mention their time and stress). The case included testimony from an animal behaviorist and a video presentation called “A Day in the Life of Gigi.” The wife won full ownership of Gigi, and the husband ended up finding a great dog at a shelter for his new life.
California’s new legislation is intended to give the courts guidance on this issue. It addresses two important issues relating to pet custody disputes – first as an interim support matter and then also as part of the final determination of ownership. Family Code Section 2605(a) now provides that a court may order a party to care for a pet animal pending final resolution of the case. “Care” is specifically defined in two ways: (1) the prevention of harm and cruelty to the pet, and (2) the provision of food, water, veterinary care, and safe and protected shelter. In sum, this provision authorizes a Court to make orders for “temporary support” of the pet animal, pending ultimate resolution of the ownership issue.
The second part of the new legislation, Family Code Section 2605(b), provides that a Court may assign sole or joint legal ownership of the pet animal taking into consideration the “care” of the pet. Thus, it is believed that the person who traditionally took care of the pet during the marriage is likely to have an edge in acquiring ownership of the pet as part of the dissolution. As a result of this provision, we are likely to see an increase in the number of joint ownership orders.
For the most part, and in the vast majority of cases that I have seen, couples are able to arrive at agreements about their pets. I have seen several cases that despite the couple’s strained relationship, one spouse will agree that the other person could have “visitation.” In many cases, co-parents will agree that the family pet should have two houses and go back and forth with the kids. For example, when the children are with Mom, Fido travels with the children to Mom’s house, and then vice versa with Dad’s schedule. The family pet can often serve as an important source of continuity and security for the children and may be considered by a Court in determining the “best interests” of the children. For some cases, the support and maintenance of the pet animal may be an agreed upon component of child support and spousal support.
One of the significant benefits of mediation is that a divorcing couple can consider and weigh our new legal landscape, but then in a cost-effective and peaceful way tailor their settlement so that it makes sense for their lives and the lives of all other family members – including Fido.
Thanks for reading. If you have come across other creative ways of resolving pet custody disputes, drop me a line as I would be interested in hearing about it.