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Forget the kids... who gets the dog?

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“Pet custody” is a recent topic of interest in Family Law. How to treat pets in a divorce is a somewhat evolving issue. While the standard practice for years has been to treat pets as any other property, there has been a more recent trend of making more creative orders about pets. Typically, this applies to dogs more often than other types of pets.

Variations of “pet custody” that I’ve seen include sharing and exchanging the pet like a child or exchanging the family pet with the children. An attorney friend of mine told me that she had a case where a couple was ordered to share a dog despite living in different states. The dog was in California for 6 months and in Virginia for 6 months.

Practitioners I have spoken to take a dim view of “pet custody.” Several have noted that this simply is another issue for people to fight over during a divorce and is often a way for one party to simply try to injure another party emotionally and financially. Another practitioner commented it that it’s simply a means for people to stay connected when they should be moving on. Another attorney friend of mine told me that her case failed to settle at Mandatory Settlement Conference due in large part because the parties could not agree on who keeps the dogs. This means that the case is going to trial over who gets the dogs. In short, they generally feel that pets should be treated like any other property item.

Interestingly, this issue often reverses course when the pet is considered more of an expense than asset. Pets require food, maintenance, veterinary care, boarding, etc. Family law practitioners are likely familiar with a now infamous case in which one family law practitioner left two dogs at the office of another practitioner when the clients could not determine who should maintain responsibility of the dogs. In a hypothetical scenario, one party did not want to shoulder the expense of maintaining the parties’ dogs. The other party would not take the dogs but cited the Family Law Automatic Temporary Restraining Orders (preventing the disposal of community property) when the first party threatened to take the dogs to the animal shelter. In a similar hypothetical case, one party left pets in the family residence, but then relocated. The party remaining in the home wanted the pets removed and wanted to discontinue the utilities while away for several months. This lead to a dispute about financial responsibility for maintaining the space and utilities for housing the animals.

Pets are akin to sentimental property items, such as photographs, which are difficult to place a true dollar value on. Some judicial officers seems to place particular value on the emotional connection people have with pets, recognizing that the sentimental value of pets. Family law courts are known to be “courts of equity. Thus, in family law, judges generally have fairly broad discretion in decision making. How this issue will be treated in any particular case may depend on which judge is hearing the case. Emotional support animals and service animals add another layer of complexity to the findings of fact and outcome of such hearings. Practitioners may need to be prepared to show up with more than a “bill of sale” in order to argue the pet’s true value; And clients may need to prepare to fund evidentiary hearings over who gets the dog.

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