People have always fought like cats and dogs in divorce court. However, the number of cases where people are actually fighting over the dog or cat have increased substantially in the past several years.
Many of these cases get a great deal of media coverage, particularly where large amounts of money are spent on legal fees. For every sensational case you see on CNN or in the headlines of a newspaper though, thousands of other couples parting ways also wrestle with this problem in family courts. Dogs, while considered “persons” or “family members” in their owners’ minds, are not given the same status in court as human children, although it’s easy to apply the same principles for canine custody as used in child custody.
According to a new Illinois state law that went into effect on Jan. 1, judges in divorce proceedings can consider the well-being of companion animals when determining who gets sole or joint “ownership” of the pet. The important language in the Illinois law is:
“If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal to the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.” (ilga.gov/legislation/publicacts/fulltext. asp?Name=100-0422&GA=100)
“It sort of starts treating your animal more like children” instead of property, said Illinois state Sen. Linda Holmes, D-Aurora, who sponsored the legislation and is a self-proclaimed animal lover. “If you’re going before a judge, they’re allowed to take the best interest of the animal into consideration.”
The law, similar to one in Alaska, applies only to pets that are marital assets, not service animals.
For years, pets have been treated no differently than other pieces of property to be divvied up between the couple. Many couples are able to reach an agreement on pets outside of court, but when they can’t, Illinois judges will have the law to assist them.
During the last decade, the question of pet custody has become more of an issue in divorce cases when it involves a two-income, childless couple who shared responsibility for and are both attached to the jointly acquired pet. It could be resolved with both parties sharing custody or, as the law calls it, joint ownership.
It’s a positive step in the law to include now a consideration for the well-being of the animal. Most pets are seen as family members and having this recognized by courts is keeping up with developments in society.
Other states, such as Alaska and California, have adopted their own version of pet custody laws. The Alaska amendment was sponsored by former representative Liz Vazquez, R, and the late representative Max Gruenberg, a Democrat and family lawyer who once handled a divorce that resulted in joint custody of a sled dog team.
David Favre, a Michigan State University law professor who specializes in animal law, said of the Alaska amendment, “For the first time, a state has specifically said that a companion animal has visibility in a divorce proceeding beyond that of property — that the court may award custody on the basis of what is best for the dog, not the human owners.”
As animals’ social status has evolved, courts nationwide have struggled with the pets-as-property idea, said Kathy Hessler, director of the Animal Law Clinic at Lewis and Clark College in Portland, Oregon. The parties involved often want decisions on custody, visitation and even monetary support for a pet, she said.
Often couples purchase pets with shared money, but rarely do people want to be “bought out” of their share of Fido, as might happen with any other asset.
California’s new law went into effect this April and allows courts to look at what is best for the domestic animal in terms of custody instead of property allocation.
We do not have any law in West Virginia for pet custody. That isn’t saying a judge won’t address it if you ask for the dog in your divorce. Become familiar with the standards for child custody as they are the basis for the decisions made for pet custody. Specific to pet custody, consider these issues and be ready to support them with documentation:
- Who gets physical custody of the pet?
- Are you going to have shared custody?
- How financial obligations for the pet will be handled if shared custody.
- What veterinarian will you use?
- Will the non-custodial ex have visitation?
- What restrictions will apply to visitation?
- Any other aspect of the dog’s future should be in writing if you are sharing custody.
West Virginia needs to create good laws for custody of pets. Legislators should consult with animal advocates, matrimonial lawyers and pet parents for guidance in creating safe laws for pets whose “parents” are divorcing. If you have a prenuptial, you also need a petnuptial. It should clearly state who gets the pets. It’s easy to create and is a necessity to assist judges as we do not have a state law yet.