Our pets are beloved family members and the thought of never seeing your cat or dog again after a divorce is probably unthinkable. In most states though, the law does not provide clear guidance for deciding pet custody, and instead, the courts treat a pet like they do any other kind of personal property.
A value is assigned to the pet, and it is given to one spouse or the other in the judgment of divorce. This can be distressing because pets deserve special consideration and care and are not simply property to be divided like a car or a piece of jewelry. A survey of divorce attorneys found that there has been a 27 percent increase in pet custody cases in recent years.
New York Rules About Pet Custody
New York State recognizes that pets are more than personal property; however, New York courts do not go so far as to treat pets like children. Instead, courts in the state use a “best for all concerned standard” when deciding who should own a pet and how it should be shared.
To determine this, the court must consider:
- The ownership title (who purchased the pet)
- How the pet was obtained and came into the family
- How the couple spends time with the pet after they have separated
- The relationship between the children (if any) and the pet. In general, if there are children, the pet will be placed with the parent who has primary custody of the children
- The emotional impact on the owners of any pet custody arrangement
- What is best for everyone in the family (parents, children, and pets)
Laws in Other States
California, Alaska, and Illinois have laws that consider what is in the pet’s best interests, instead of simply allocating a pet like other personal property. In those states, courts will conduct a best interests inquiry, similar to how they would weigh custody of children. This is an emerging field, and it is likely more and more states will change how pets are treated in divorce in the future.
Why Pets Become a Contested Issue in Divorce
For many couples without children, pets become surrogate children and have very important roles in the family. Neither spouse wishes to be separated from their beloved animal. In other cases, pets are used as bargaining chips. One spouse may be deeply emotionally attached to a pet and the other spouse recognizes this and seeks custody of the pet as leverage to get something else they really want, such as the home.
Sometimes there is a fear that one spouse will harm a pet or give them away to hurt the other spouse. In some cases, a purebred animal may be extremely valuable for its titles or breeding potential. This can cloud the issue, with one spouse wanting the pet because of its value and the other for the emotional connection they have with the pet.
12 Tips to Prepare for a Pet Custody Case
If you suspect your spouse will not agree with your wishes about custody of your pet and you won’t be able to come to an agreement on your own, there are some steps you can take in advance that will strengthen your case and help ensure you can get custody of your pet at trial.
- Gather all the documentation you can find about who has been involved in the pet’s life, such as taking the animal to the vet, on walks, to training classes, to a groomer, and so on. Receipts can be helpful as can calendars for this purpose
- Track all the things you do each day that involves your pet, such as walking, brushing, playing, feeding, bathing, cleaning litter boxes, giving medication, and so on. Write these things down on a calendar so that you have evidence of your involvement.
- Find your contract of sale or adoption for the pet and locate any other documents from this time (such as emails you sent to the breeder or rescue organization) that demonstrate your active (or sole) involvement in obtaining the pet.
- Take photos and videos of yourself with your pet and find older photos and videos taken before the separation that demonstrate your relationship with the pet. If you have children, locate photos and videos of the children with the pet as well.
- Locate social media posts you have made about your pet in the past. Continue to post regularly with your pet during the pendency of the divorce case.
- Make notes about specific concerns you have about your spouse when it comes to the pet, including specific incidents in which they harmed your pet, placed them in danger, or were inconsiderate of the pet’s needs.
- Track the costs of pet care each month and make sure that you are the one paying for these needs.
- Do not agree to your pet going to live at your spouse’s home if you are separated. Any arrangement you agree to while separated is likely to be continued by the court, so be very careful about any agreements you reach and consult your attorney first.
- Avoid leaving your pet at a boarding facility or with a pet sitter if at all possible for the foreseeable future, until your divorce has concluded.
- Make a list of people who can testify about your relationship and involvement with your pet, such as your vet, your groomer, your pet trainer, your dog walker, friends at the dog park, neighbors, friends, and family who have seen your interaction with the pet.
- Pay attention to your custody case (if you have children) because the outcome of that aspect of the case is indicative of how the pet custody will be decided.
- Work with an attorney who has experience navigating a pet custody trial.
Pets bring light and love to our lives. Making sure you can get custody of your pet is a key element of your divorce.