In 1897, the U.S. Supreme Court ruled that citizen-owned dogs were personal property. Since that time, the view of animals has changed significantly. Today, animals are seen as sentient beings deserving of humane treatment, and changes in both federal and state law reflect this change in attitude. Animal cruelty is a now federal crime and over half of the states let judges include pets in domestic violence protection orders. Now more than ever pet owners see their pets like pseudo-children. However, one place where the law still treats pets like property is divorce court, where disputes over the ownership of family pets is generally solved by assigning a dollar value to the animal, and then assigning ownership along with the rest of the parties' personal property.
That being said, in recent years new laws in four states suggest a shift may be happening toward treating pets more like children and less like property in divorce cases. In Alaska, California, Illinois and most recently, New York, laws have been enacted so that judges are able to award custody in pet disputes in divorce cases and consider the welfare of the animal in making that decision. In these states, judges are tasked to consider the best interests of the animal in awarding sole or joint custody.
Since January 2017, Alaska law has required judges to look at the well-being of animals when awarding custody in divorce cases. The law also gives judges the authority to award joint custody of pets if it is deemed to be in the best interest of the animal.
In January 2018, Illinois became the second state to require judges to allocate the sole or joint ownership of and responsibility for a companion animal of the parties in a divorce. Under the statute, the court must take into consideration the well-being of the companion animal.
As of January 2019, California law allows family court judges to consider the best interest of the pets. However, unlike the other states, the California law does not require judges to apply the best interest standard.
Most recently, in 2020, New York became the fourth state to apply the best interest standard in awarding custody of pets of a pet or companion animal in a divorce. These new pet custody laws provide divorce court judges with options they never had before including assigning sole or joint ownership of a pet animal taking into consideration the care of the pet animal.
When it comes to your pets, it’s important to plan ahead for how pet ownership, custody and support will be handled in the event of divorce. As is the case with parenting plans used when divorcing couples have minor children, there are several elements that should be included in a pet agreement, including:
A pet agreement is a contract that sets forth how custody, visitation and support will be handled if the parties are no longer together. Pet agreements can be used by anyone with a pet sharing relationship. On the other hand, a “petnup”, as its name suggests, is a type of pet agreement when two people are preparing to get married. A petnup may be a separate document or it could be a provision in a full prenuptial agreement.
While animal custody laws in divorce have been applauded by many, including animal rights groups, family law attorneys worry that these laws will only serve to further congest the already overloaded family court system. Child custody cases can be complicated, and often require home studies and assessments by experts to assist the judge in determining what is in the best interest of the child. If this standard is applied in divorce cases involving pet custody disputes, it will further add to the existing court backlog. It was the concern about further exhausting limited court resources that led California to make its law discretionary rather than mandatory. Over the last five years, other states have introduced bills concerning pet custody in divorce. Pennsylvania, Rhode Island and Washington, D.C. all have bills referred to judicial committees, but so far none has become law.
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