Family Law Newsletter - Pet Custody
Jan. 9, 2020
When couples face divorce or legal separation, they must divide many assets, finances, property and belongings. Among these assets are the family pets. People commonly hear of disputes over child custody or visitation, but for some couples, custody of pets may be just as emotionally consuming. Pets are often treated like children by the individuals and the couples will not consider ownership of the family pet as part of a property settlement agreement. Disputes arise over custody and visitation and courts have been lenient in their control over such disagreements.
Under the current law, there is no remedy for couples who want custody or visitation of their pets. Even if a couple agrees to a visitation schedule, Judges do not have the authority to uphold it in the court of law and incorporate it into the couples divorce decree. Companion animals are considered a part of marital property. That makes it difficult for a court to determine how to provide a resolution. The court must view the pet as property and the best interests of property cannot be determined. This leaves the decision to the couple. If the couple cannot make the decision, the court often views the family pet as property. This limitation gives the court few options, such as giving the pet to one of the spouses, giving the other spouse the monetary value of the pet or selling the pet and dividing the proceeds between the couple.
Alternatively, there are anti-cruelty laws that some courts may use as authority in determining which spouse gets ownership of the family pet. In those instances, the court may consider the best interests of the pet. These courts seem to take into account the emotional aspect of pet custody. Pet owners spend a large amount of money on their family pets and often regard them as children. Some courts are beginning to consider this trend when applying the law and making their determination. However, this view is in the minority. Most courts will not extend the best interest's standard to animals. Therefore, the majority of the courts are still relying on property law when deciding the custody of a companion animal.
Unfortunately, when courts look to property law when determining pet custody, valuation may be an issue. When dividing property between divorcing couples, the property's value must be determined and distributed equitably. Therefore, if the family pet was acquired sometime during the marriage, its fair market value must be determined. This does not take into account the companionship, relationship with the couple or any sentimental value of the animal. As a result, many animal rights groups are pressing for the courts and legislatures to consider companion animals as more than personal property and for the laws and treatment in the courts to reflect that change. Their argument is that pets may be less than human, but they are living beings that cannot speak up for themselves or their rights, they respond to love and also experience trauma when abused. For these reasons, pets must be protected and the courts must apply a "best interests of the pet" standard when determining pet custody. This argument is not currently reflected by law or in most courts; however it has a growing body of supporters and advocates that may change how pet custody is treated by the courts in the future.
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