Fighting Like Cats and Dogs: Awarding Pet Custody in Divorce Proceedings
Today's post is shared with us from Jessica Kirk Drennan.
Do you consider your pet to be property, a family member, or something in between? In consideration of rising divorce rates, some people are more reluctant to sever the relationship with their pet than their ex-spouse. When a couple divorces, parties commonly fight over the family pet both in and out of court. Surprisingly, however, courts have only recently begun to state their opinions of pets in the courtroom.
A court involved in divorce proceedings considers redistribution in two ways. First, property such as real estate and jewelry is designated a monetary value and is split between the two parties at the court's discretion. Children, on the other hand, are protected under child custody laws and are not negotiated in court the same way parties negotiate ownership of property. Child custody falls into its own category of laws that are separate from property law. When a couple owns a family pet, however, the line between property law and child custody law becomes blurry. Is Fido considered property and assigned a dollar amount to be negotiated among sofas and dishes? Or does a court recognize the unquantifiable emotional attachment between pets and owners and allow joint custody of a pet as it would a child?
Generally, divorce courts consider pets under either property law or the laws that govern child custody. Courts can value a pet as property, without ignoring the emotional attachment and importance of a pet, by designating a fair market value to the pet. A fair market value considers a pet’s pedigree, purchase price, age, health, pregnancy status, prizes the pet has won, and the purchase price of the pet’s littermates. Unfortunately, this valuation rarely equals the value a pet owner would give to a mixed-breed pet or a pet adopted from a shelter. Even after considering vet costs, food, training, and grooming, a pet owner may believe this monetary value is not just compensation for losing a pet in a divorce.
Some jurisdictions have treated pets as more than traditional property and have adopted a “best interests of all concerned” standard that considers the interests of each spouse and the pet in question. Courts such as the Wisconsin Supreme Court that are “uncomfortable with the law’s cold characterization of a dog as …mere property” maintained a distinction between a human child and a pet, but also drew a new line between pets and property to emphasize the emotional attachment to pets that does not exist with “mere property.”
Alabama, among other states, has developed further in applying a “best interests of the pet” analysis paralleling the widely used “best interests of the child” analysis in child custody law. For example, a mother sought to reclaim custody of her dog from her daughter after her daughter’s boyfriend removed the dog from the mother’s home against the mother’s will. An Alabama court recovered the dog to the mother and noted that the best interests of the dog were better met by the mother in her home than by the daughter, who lived in a hotel room. In another Alabama case, the court considered the best interests of the pet when awarding sole custody to the husband because the wife lived in an apartment that did not allow the dogs to live with her. The wife claimed she would find new homes for the dogs, but ultimately presented no evidence that she had a home for the dogs at trial or that she sought court intervention to be reunited with the dogs.
Other states have opted to use custody law instead of property law. These few courts have ordered joint custody or visitation of a family pet after divorce or separation. However, most courts have not allowed joint custody or visitation of a pet, stating that the courts are not used in the most economic sense if cases concerning pet custody were to be entertained and that pet custody issues should be decided outside of court. However, most courts would not enforce pet custody agreements and would instead award full custody to one of the parties.
Custody of a pet is usually awarded based on best evidence of ownership (under property law) and best interests (under custody law). Ownership may be established by proving the pet was a gift or the owner personally selected and purchased the pet. In some jurisdictions, ownership is immediately established by possession of a pet. However, Alabama courts have not established ownership by possession: “Ownership of an animal involves more than a mere right of property in an animal.”
Evidence showing best interests are met is more subjective, such as inclusion of a pet’s name in pleadings, witness testimony, video evidence, proof of responsibilities, and ability to care for the pet. Other considerations include the pet’s age, territory, past treatment by both parties, and the existence of other pets or children in the home. Usually, a divorce court automatically enters a temporary or interim order pending final judgment of the case, which keeps parties from hiding or disposing of property during court proceedings that could have eventually benefitted the less financially stable spouse. Due to most courts’ hesitancy to consider pets in the same realm as children in custody issues, courts usually will not spend much pretrial time to the protection of pets and will instead consider pets as property for pretrial purposes. As with most other matters, however, parties may enter into a private agreement outside of the court which deals with pet custody issues, including where a pet may live during court proceedings.
Although courts do not recognize pets as people, they still usually recognize that a pet is more sentimental than a dollar amount. Because of this emotional attachment, courts usually enforce specific performance instead of money damages when a party violates an agreement regarding pet ownership. When a court issues a divorce judgment and the parties write agreements to supplement the judgment, courts may enforce the agreement as a court order. If the agreement is not incorporated into the divorce decree, then contract law applies to the agreement. Contract law protects prenuptial agreements. In the event that a prenuptial agreement provides for custody of a child, public policy renders the agreement unenforceable because a prenuptial agreement cannot override a court’s future judgment in a child custody case. On the other hand, courts do not afford the same protection to pets whose custody is agreed upon in a prenuptial agreement.
Pet custody disputes are still very fresh in courtrooms, and barely existent in Alabama courts. So far, Alabama courts have decided pets are personal property in decisions concerning custody of pets after divorce or separation. Also, Alabama case law states that “ownership of an animal involves more than a mere property right” and “ownership is presumed to be in the person who possesses the animal.” Alabama also considers the best interest of the pet in divorce proceedings, which involves true ownership and factors pointing to which party is better able to provide adequate care for the pet.
Eventually, animal law precedent will improve future pet custody disputes in divorce law. In the last few short years, pet custody litigation has skyrocketed and will continue to set precedent or prove the need for statutory support. Although most courts do not recognize pets as humans, the family dog is finally considered worth more than his adoption cost from the shelter.