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Sharing Fido: Does your state have pet custody laws?

Tim Clarke - Sep 2008

If two Wisconsin lawmakers have their way, the world of visitation rights for divorcing spouses may soon expand to include furrier items than children. The new legislation would give splitting couples the ability to divide the ownership of a pet in a way that allows both a chance to see their animal. Complete with provisions for custody, visitation and even pet-support payments, the new bill is the first in the nation to try and address a relatively rare, but nonetheless contentious issue divorcing couples may face.

Conflicts over a pet can be just as important to divorcing spouses as any issue when both spouses have developed a special connection to a companion pet and wish to maintain it. This feeling can be even greater where the couple has no children, and the dog or cat has taken on the role of the couple's "child." But unlike real children, for which extensive case law and statutory measures exist, pets have been largely ignored as a critical concern in a divorce.

Pets as Property?

The long standing rule courts adhere to is to treat a pet as a piece of personal property and assign ownership rights in accordance with the marital laws governing property in a given state. However, most lawn chairs don't bark or meow and certainly don't provide the same companionship and intangible positive qualities that a pet can. This disconnect has resulted in conflicting treatment of pets in divorce cases.

Most states have refused to enforce visitation agreements because there simply is no precedent for it. In fact, one Pennsylvania court even likened a custody schedule for one couple's pet to a "visitation schedule" for a piece of furniture. Furthermore, calling upon the courts to adjudicate more in depth on these matters could be seen as a needless drain of judicial resources. At least one court has indicated that the system is overwhelmed with child custody, visitation and support issues alone.

Keeping the best interest of your pet in mind

More and more courts however are coming around. Judges in both Texas and Alaska have created visitation schedules between former spouses. Some of these judges in fact rely on a "best interest of the pet" system to decide on custody and visitation rights, though it is often tricky without access to the actual desires of the animal.

Yet, in some cases, courts do engage in de facto, if not de jure "best interest" analysis in awarding ownership to what it considers the better home for the pet.

Absent a clear indication of individual ownership, they have some leeway to consider who the most able caretaker is for the animal. If children are involved in the case too, a judge will usually keep the children and pet in the same household. While the losing spouse may be fairly compensated for the division of property, oftentimes this fails to reflect the sentimental value the animal had to its former guardian.

The imperfect state of the law can result in extreme steps taken by one or both spouses. Some couples spend exorbitant sums of money fighting the issue of ownership. In one display of this, a San Diego divorcé spent over two years arguing for custody of the couple's dog "Gigi". Among other efforts, she enlisted an animal behavior expert, commissioned a study on "canine bonding" and created a video documenting a day in the life of Gigi. While she ultimately prevailed on the issue, her legal bills reportedly ran in excess of $140,000 by the end of the trial.

Stealing Spot

Pets can also unwittingly fall victim to the vindictive nature of the divorce process, and become just another battle to win. This can lead to fights, petnappings and sometimes worse. An Oregon woman avoided jail-time only after an appellate court ruled her failure to turn over the pet wallaby awarded to her husband was the result of an accidental escape on the part of the wallaby and not a willful attempt by her to hide "Skippy". Another Texas woman was less fortunate and was sentenced to jail for 30 days after concealing two cats and lying under oath about their whereabouts to keep them from her former husband.

Fido's Future

State legislation such as the Wisconsin law could change how courts view these issues and give previously unrivaled latitude to judges and spouses to decide what happens to a pet post divorce. While the issue remains relatively rare, the increasing awareness of animal issues in the law could result in a proliferation of these cases in the future.

Even absent judicial enforcement, a visitation schedule can serve as a viable compromise in more amicable cases of divorce, and provide a better solution for spouses than monetary compensation. But without legal legitimization, the possibility of messy problems in the future makes it a less than ideal solution. As changes to the status of animals elsewhere under the law become more common, the likelihood of an extension of divorce law increases dramatically. The more courts start to view pets as something beyond articles of property, the more amenable they will be to allowing couples to create and enforce custody plans.

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Comments

Submitted by TonyKoestler on Jan 17, 2011 - 11:47AM

I need advice,
A few months ago me and my gf broke up, and now we have a problem sharing the dogs. She has kept the dogs at her place and for the past few months I have come over couple times a week to take them over to my place for the day. However, recently she has refused me access to see them. She claims that the breakup was hard and seeing me is distressing... and therefore, I need to cut all ties not just to her but the dogs as well.

If she does not want to see me, that's fine; I will try to abide by her decision. But to have me cut all ties to my dogs is impossible. I love them dearly and they are my children.

A little background: when we first moved in together we came to an agreement to split Everything (i.e. rent, utilities, etc.). After that we got the dogs... she bought/adopted them (from the pound), her name is on the vet computer. We took turns buying food/toys, paying to vet bills, and all fees were split as per our oral agreement. I even paid $3000+ in vet/surgery bills for another pet she had previously had before she met me (Why? because I love that one just as much as the two dogs).

I don't want full custody or to even deny her contact with our dogs; I just want access to them would love to have them over a few days a week to my place. Of course, I can't just go over there and take them as I don't want to seem like I am trespassing or get a restraining order.
Is joint custody too much to ask for and does my appeal have merit? What are my options?
Thanks,
TK.

Submitted by LegalZoom Nina F. on Jan 28, 2011 - 4:29PM

Hi Tony, thanks for thinking of LegalZoom. Just a reminder: LegalZoom makes it easy and affordable to create your own legal document, but we don't give specific legal advice. We can help you find an attorney with our attorney referral network: http://attorneyconnect.legalzoom.com

Submitted by Anonymous on Feb 9, 2011 - 1:44PM

Hey Tony, Did you every get this resolved. This is kind of a similiar situation that I am in and I really need help and have NO clue where to turn. My only difference is, I paid for the dog. Can you email me and let me know what you did or with any advice?

Submitted by MIC on Feb 24, 2011 - 9:55PM

This is the exact situation I am starting right now with my ex. Do either of you have any advice?

Submitted by Guy on Apr 27, 2011 - 6:21AM

Submitted by MIC on Feb 24, 2011 - 10:55PM

This is the exact situation I am starting right now with my ex. Do either of you have any advice?

Mic, I empathize greatly with you as my situation also seems quite similar. While I have little discretionary income to afford a real attorney, (been disabled the last 3 years) I contacted ASK.COM (no offense Legal Zoom) to acquire advice on the case. Initially, their position aligned with the State Of Texas Common Property Division Standards. However, she and I were not married, even by Common Law Standards that would be hard to prove so at best, we were eventually just housemates. Then I moved out but had not bought my dog yet though she retained possession of the remaining 3 cats and Pedigree Dog. It was over a year and a half before I was evicted from by apartment due to sudden financial difficulties and her offer to stay there with NSA (since we weren’t dating even remotely - different rooms etc) for a few months was my best and only offer. I had purchased my own AKS Pedigree dog while we were not together. Of course my XGF fell in love with my dog that was then 11 months old. I raised her; paid pet bills etc the entire time without living there and then paid those plus hers and food etc., grooming et al while I was there for the next 4 months. An evasion of my privacy was breached by virtue her breaking into my mobile phone and found some rather difficult/compromising data, not expecting I guess) - without any real provocation, a small portion of my belongings were tossed out into the street, almost neatly but no access since then to any of the animals. It’s been 5 weeks and my dog is scheduled for various vaccinations, actually as a direct result of her inaction to allow at a minimum some visitation, the pet may indeed begin to suffer the effects of the omission of that plan of care for which I also pay a modest monthly fee for routine exams and discounts. Every single receipt without question shows me as the rightful owner of this pet. IMHO this is still in the best interest of the dog to come home with me. Time is of the essence especially because of the impending Veterinary skipped visits; the X barely recognizing that I am speaking, paying no attention with the exception to the left jaw and face from her fists upon her departure.
I could go on with this but time is late and I am sure you get the rest of the situation. If anyone has any course of action available, please help. Since we do not even qualify for divorce under the Common Law Statutes, I am curious if that has any bearing other than what I brought there is still mine and in a few days I can/should report the dog as stolen.(knowing the address of course having lived there)This will be sent tomorrow based on the JOTP guidelines. This is where LEGAL ZOOM might be able to be of some assistance in the draft of that letter. Soon after wards, I will send my version of return/receipted registered letters. (Stating what my demands/requests are, needs, expectations for a timely return of the property etc) Specifying a somewhat countdown coordination period, must elapse and without a reply to address any concerns I can head to the house, papers in hand and if the JOTP can verify than she must surrender the dog at their and can assist my owner ship on the spot - True or false!?

Submitted by Andrew on Oct 3, 2011 - 11:33AM

Hello, i am in a very similar situation as well. 2 years ago i bought my dog while my GF was at college she was around once in a while to care for her and love her but i rasied and trained the dog as my own. I paid for the entire dog myself and most vet bills. my GF and i have recently broken up and she wants dual custody of the dog but it clearly effects the dog in a negative way. my dog does not know who her owner is nor where she lives. I have told my GF she can see the dog whenever she wants but that is not enough for her. Should i take this issue to court? please email me if you have any advice.

Submitted by LegalZoom Saman... on Oct 10, 2011 - 8:56AM

Hi CK, thanks for contacting LegalZoom. This is a good question, however, our specialty is legal documents, and not adoption. However, you can get free legal advice on the LegalZoom Facebook page every Friday and Tuesday. Check out Free Joe: http://zoo.mn/FreeJoe.

Submitted by Jared on Dec 10, 2011 - 8:21AM

I need some help. My ex girlfriend had a dog for a year and a half before we got back together. Since then I've taken full care of the dog. Vet bills, food and so on for over 5 yrs. She hasn't even seen the dog in three years. Now she wants her back. What do I do? I would have done the visitation thing but she just wants to be spiteful.


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