Pet Custody in Divorce – Who Gets the Family Beagle?

July 28, 2016

Pet Custody in DivorceMany families include members with four paws instead of hands and feet. Pet custody or pet possession issues are seeing more litigation in divorce courtrooms in recent years.

In a recent survey from the American Academy of Matrimonial Lawyers, more than 25 percent of attorneys report they noticed an increase in the number of couples who have fought over pet custody during the past five years.

Some courts across the United States are changing their approach to the pet custody issue.

You get the Crockpot. I get the Cat.

Like most states, Nebraska considers pets to be personal property, so they are technically subject to the same rules of equitable division in a divorce case as would be a crockpot or a living room furniture set.

Also, like any other personal property, because a dog can’t be split in half, if divorcing couples can’t agree on who gets custody of a pet after the divorce, some courts will force the pet to be sold and the proceeds of the sale divided between the parties.

But You’ve Never Loved a Casserole Dish Like This 

As attitudes toward pets change and they are seen as more part of the family, the legal analysis is showing signs of changing, too. Some courts are recognizing that pets aren’t quite the same as a casserole dish or a car.

There are feelings attached to pets and many believe those feelings run both ways – not just from the human to the pet, but from the pet to the human as well.

Best Interests Arguments – for Children and Chihuahuas

Courts in some states are starting to treat pets – usually dogs – almost in the same way as children when it comes to pet custody and considering the best interests of the animal in the pet custody decision. Some judges have even awarded visitation rights or joint custody. Because pets are still considered property, however, courts will usually term it something else, like “alternating possession.”

In some cases where child custody is also at issue, there may be an argument that that what’s in the best interest of the child may include custody of the pet.

How Scooping Poop Could Win Your Pet Custody Case

Many courts just don’t have the time to monitor ongoing disputes that could arise over time when there are pet visitation or joint pet custody arrangements for a pet in a divorce case. Also, the court’s packed calendar may make it necessary to deal with the pet possession issue as expediently as possible at trial. As a result, some courts will look at equitable principals to determine who has the better claim to ownership.

Most often the court will look at factors like who was the animal’s primary caregiver – who walked the dog, scooped the poop, took the dog or cat to the vet and the groomer, bought the food, etc. Saying that scooping poop could win your case may be a bit of an overstatement, but it could be a factor in proving that you are the primary caregiver – which, for many courts, could be the deciding factor that firms up the finding for Fido.

Take Control of Fido’s Fate 

The alternatives a court might come up with if an agreement can’t be reached by you and your soon-to-be ex may not always be good ones. Selling a beloved family pet isn’t something most people we’ve worked with at Hightower Reff Law want to do. A good way to avoid the possibility is to take control yourself through mediation.

In mediation, both parties sit down with a neutral third party who is a trained mediator and work out a solution to the pet custody problem – much like they would work out a solution to child custody issues.

When an issue has such emotional significance, it’s far too important to leave the decision in the hands of someone else. In our many years of practice, the attorneys at Hightower Reff Law have found that our clients are almost always more satisfied with – and more likely to follow – an agreement they reached themselves in mediation rather than an order handed down by a court.

What to Look for in a Lawyer

If your divorce involves a family pet that’s important to you, bring up the issue in your initial consultation with an attorney. Make sure he or she is familiar with pet custody or possession issues, understands that your pet is important and will take seriously your concerns and goals regarding your pet.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Tracy and Maya

Tracy and Maya

About the Author

Pictured are author Tracy Hightower-Henne, and her 7-year-old Great Dane, Maya.

Tracy says that, true to form, Maya does not realize her size, and fancies her self a true lap dog. Maya’s favorite things are: lap-based snuggles, long walks, playing tug with any kind of toy, getting lots of pets, and lap-based snuggles (she likes lap-based snuggles so much, they must be mentioned twice).

Tracy has had furry family members since her childhood. Right now, the furry family members outnumber the non-furry ones in her house. “We got Maya right before my husband and I got married. We also have 2 cats. Our pets are truly part of our family and we treat them like part of the family. They are definitely spoiled at our house. When a client tells me that keeping their pet in their divorce case is important to them, I get it. I know what it’s like to love your pets and to treat them like family.”

Maya's Birthday

For more details about the author, Hightower Reff attorney Tracy Hightower, visit her profile page at our main website.

To learn about Hightower Reff’s family law practice, visit our main website.

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