In our society, dogs and other pets are viewed as beloved members of the family, with many referring to them as “fur babies” or “children”. During a divorce proceeding, the care and custody of the family pet is often a large concern. However, until recently, there has been no statutory guidance to tell courts how to handle this difficult issue.
The lack of guidance essentially left individual judge’s discretion to determine how divorcing parties split a shared pet or whether to even entertain argument on the issue. In some cases, the court would follow a property analysis, attempt to identify the person who paid for the pet’s adoption or purchase fees, and deem that person the pet’s owner. In other cases, there was no mention at all of the pet and their post-divorce fate. Even if a court did make orders for the placement of the pet, typically no further orders were made about the requirement to provide ongoing care for the pet.
There have been extremes on both ends. In a 2002 case in Southern California, a compassionate judge ordered that parties arguing about their dog submit to bonding tests with an animal behaviorist to determine where the dog should live. On the opposite end of the spectrum, a Pennsylvania appellate court dismissed an issue regarding custody of a dog stating it was “analogous in the law, to a visitation schedule for a table or lamp”.
California, often willing to take the lead in expanding social jurisprudence, has now adopted a statute to address this issue. California adopted Family Code Section 2605 effective January 1, 2019. Under this statute, courts can now assign sole or joint ownership of a community property pet taking into account the best interests of the pet and which party is better suited to fulfill the pet’s needs. The court can even make temporary orders regarding a pet’s care before a final judgment of dissolution is entered, which can include shared custody with time sharing arrangements between the two households.
As California is often a “trend setter”, it will be interesting to see if more states follow by enacting legislation to address pets in divorce situations.