Who keeps, not eats, the family dog? The law keeps changing.
When parties divorce, it seems that both sides want the family dog. Courts and legislatures across the country know it, and they are acting accordingly. Consider the horror this past election cycle when it was suggested that immigrants were eating family pets. In fact, I have regularly been asked to comment on this issue for multiple media outlets and have written about it in this column.
The law concerning pet custody, and the family dog specifically, continues to evolve. Traditionally, pets were treated as chattel, that is, personal property. A pet was no different from a chair or a cabinet, irrespective of its value to the family. This required courts to consider if the pet was the separate property of a spouse, either because it was owned by that spouse prior to the marriage or gifted to the spouse during the marriage.
The legal system has started to adjust its considerations of pets and their possession up on divorce, with courts increasingly considering the factors like their owners’ best interests, the pets’ best interests and the best interests of children central to divorce proceedings when deciding who should retain the pets. The psychological connection between children with their pets is often intense, and especially important, during a divorce. For this very reason, some divorce lawyers encourage their clients to make sure that their children do not go without a pet in a post-divorce household.
Litigants generally have gravitated to alternative dispute options to resolve their marital problems in recent years. And solving the question of what to do with the family pet fits out-of-court conflict resolution models quite well. Encouraging co-ownership, or at least cooperation, as opposed to the traditional adversarial litigation process of court, is surely good for all parties, including children and the pet.
passed a law designed to further a pet’s best interest. Illinois has since followed suit with a law intended to look at which party was more involved with caring for the pet. These states reflect a broader move nationally that considers all aspects of the family, including the pet. Some of these evolving considerations look at which party was the pet’s primary caregiver; with whom the pet has the greater emotional connection; and with whom the pet will have a better living situation.
If the parties agree, the court may allow a pet-sharing arrangement. Experienced practitioners can regale willing listeners with stories of clients who transport their pets in designated vehicles, on designated days and at designated times according to a set schedule not unlike a parenting plan for a child. At our office, we have had pets move from residence to residence in private planes, from home to home where the pet has separate wardrobes and eats separately designated meals. In one such case, we fought over the custody of a small dog at trial. The evidence presented was largely photographic, where our side insisted, he was a sailor, and the dog wore a sailor uniform, and the other side insisted the dog was a commando and wore a commando uniform. This issue was no joke to the litigants.
One can argue whether courts have gone too far considering the “custody” of the family pet. It is fair to ask whether the court’s involvement with this issue helps the families they are supposed to serve, or does the consideration of these issues needlessly slow down, complicate and increase the expense of the administration of justice in family law cases. Either way, pet custody is here to stay.
This article originally appeared as a column for the Cleveland Jewish News.