Two people fighting over cat

Pet custody has been in the press again recently. In January, a new law took effect in California which empowers judges to award or joint custody over a pet, taking into consideration the care of the pet. This isn’t just the “left coast” being creative – California was actually third in the nation with a law changing the status of pets from property to something worthy of a custody order.

Pet Custody Laws in Other States

Alaska blazed the trail for pet custody two years ago with HB 147, which allows a judge to enter a protective order for care of a pet “regardless of ownership”, and when adjudicating ownership, to take into consideration “the well-being of the animal.”

Illinois was second with its own pet custody law taking effect in 2018, providing “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.”

Pet Custody in Divorce

Per the New Republicseveral foreign countries treat pets as sentient beings, which brings with them a variety of rights, even if not full pet custody in a divorce.

Much to our chagrin (most of us at Graham.Law have and love dogs) judges do not award custody over the family pet, but instead divide them, right alongside the pots & pans, the marital residence, and bank accounts. So much for canine custody over man’s best friend!

However, when both spouses agree, we have negotiated settlements for the care of pets in a divorce, which includes the schedule and responsibility for costs. But those cases are few and far between – in most cases, the spouses won’t address pets in a divorce settlement. Instead, the cats, dogs, etc. will go to one spouse or the other, and not be shared between them with a pet visitation schedule.

Pet custody laws appears to be a growing trend in American jurisprudence, so over time, we can expect to see more states adopt some form of pet custody. For more information, see the Pet Custody Laws in a Colorado Divorce article, in the Colorado Family Law Guide.

Addendum January 26, 2021. A New York trial court has just issued an interesting opinion in a case outside of family law, but which (if followed by other judges) could affect pet custody in New York divorce cases.

As reported by the Volokh Conspiracy, Roxy is a “specially trained bed bug sniffing dog,” owned by an extermination company. However, pursuant to contract, while the company paid for Roxy’s upkeep, an employee who worked with Roxy kept her at his house for the last 4 years, with a clause in the employment contract to return Roxy upon employment ending.

Well, the employee’s employment ended, but he declined to return Roxy. The company sued, and lost, as the New York trial judge considered the dog’s best interests as part of a “best for all concerned” standard, which, because a dog is a “special category of property”, means the court will look beyond title:

“When resolving competing claims of who owns a dog, application of the best for all concerned standard is appropriate because it takes into account the special nature of dogs—their needs and well-being—as well as the competing claims by the parties.”

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Pet Custody

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