For many pet-owners, or caretakers, their animal companion is one of the most important part of their lives. Around 67% of American households keep pets (up 20% from the late 80’s). Of these, 95% consider their pets family members. With more pets as family members, the number of disputes over pet custody after separation has risen. The American Academy of Matrimonial Lawyers reported an increase of 22% in pet custody hearings.
What is pet custody?
When a couple decides they no longer want to live together, they must make a decision about custody over the family members that shared the household. This includes the pets. Who will the pet live with? And who will financially support the pet, and be involved in decision-making?
Custody can be sole or joint. Sole custody is where one of the parties will takes full physical and legal responsibility over the animal. Joint custody is where responsibility is shared between the parties.
The parties can come to an agreement over custody either verbally or in writing. It is preferably that any decision on pet custody be in writing and included in the divorce settlement agreement. In most cases, the separated individuals will agree on who will keep the family pet, the financial support each party will offer, and whether there will be visitation rights. A court will then review and if all looked legal and reasonable, sign-off on the agreement.
If the parties cannot come to an agreement on custody, or on aspect of custody, the court will issue an order the parties must comply with. Depending on the jurisdiction and consideration the court places on animals and disputes involving animals, a judge will put more or less thought into this order.
How does the legal status of animals affect pet custody decisions?
In 2019, a pet custody case made headlines when it reached the Supreme Court of the state of Maine. The court, ruled by law that considered all animals property, awarded sole custody to the partner whose name was on the dog’s adoption papers. The opposing party put forth the argument that the pet was a family member. She argued she loved the dog, presented evidence of having taken care of the dog, and requested joint custody. The court stated it was bound by law that considered the animal property, and would not grant her request.
A pet custody case has yet to reach the Supreme Court of Puerto Rico. In November 2021, however, a superior court ordered a former spouse to continue contributing financially to the support of 16 dogs and 18 cats the couple had rescued or adopted during their marriage. The parties had initially agreed that the ex-husband would contribute a set amount in support. When he stopped making payments, his ex-spouse brought the issue to court.
The court ordered the ex-husband continue to provide almost $500 to support the animals. In deciding on this amount, the court evaluated the cost of feeding and otherwise maintaining the animals, as well as the income and expenses of both parties. According to the judge, “[t]he animals were rescued and adopted by both parties and both are responsible for the security and maintenance of the animals. The [ex-husband] cannot now free himself of his responsibility for the animals. We impose the financial burden of the costs for the time the defendant has the physical custody and responsibility for the care and maintenance of the animals.”
What is the status of pets in Puerto Rico?
Puerto Rico is one of the few US jurisdictions that considers what will happen to pets after breakup, and requires courts consider their interest when issuing custody or settlement orders. Additionally, unlike Maine, Puerto Rico law does not consider domesticated, companion animals as property.
A Puerto Rico court make a determination on custody when the parties in a divorce or separation cannot reach an agreement on their own. Additionally, the law allows for joint custody. If the court awards sole custody, however, it may also provide opportunities to the partner who was not awarded custody, to share in the life of the animal. In making decisions, the court will consider the best interest of the family members, and the well-being and safety of the animal. If income is sufficient, the court can impose a monetary obligation on a partner to satisfy the basic needs of the animal.
What are some factors to consider when deciding on pet custody?
Difficulties will come up when both parties want the pet full-time, or when one partner cannot satisfy the costs of keeping the pet healthy. That is when the parties themselves must seriously consider their previous relationship to the animal. They must also consider their future lifestyle, and engage in negotiation, or leave the matter up to a judge.
The most important factor to consider is that person that will keep the pet, has the time and resources to care for the pet. This person can be identified by answering the questions of who, during the marriage or relationship:
- Paid vet costs and took the animal to the vet?
- Dedicated time to exercising, playing and otherwise providing a life for the animal aside from basic physical needs?
- Bought food for the animal?
- Initially brought the animal into the household?
- Groomed the animal?
- Has the means and desire to care for animal as they age?
- Initially took the animal with him or her after the separation? It makes sense to assume that the person that kept the animal immediately after separation is the best person to continue caring for the animal.
- Generally contributed most to the well-being of the animal.
What are some tips for negotiating pet custody?
A divorce can be overwhelming. As a result, ex-partners may make hasty decisions, or not be able to make decisions at all. They may not know how or who to ask for help, or even what to ask. The thought of letting go of the family pet may cause additional stress and feelings of loss. The following are some tips to keep in mind when deciding on custody over an animal:
Look beyond title or registration
Definitely go beyond simply giving the animal to the person whose name under which the animal is registered. A pet may be registered with the local government, a homeowner’s association, a veterinarian’s office, or a microchip service. However, by law, a companion animal, who is not property, does not belong to anyone.
Consider hiring an animal behavior specialist
Consider hiring an animal behavior specialist or an animal psychologist to help with deciding on the best living situation for the animal. Different animals, and different breeds, have their own needs. For example, in the case of dogs, some are more territorial and will bond with a place. Others will form a bond with one person only, while others may be more flexible and can easily go from place to place and from person to person.
A specialist can also help the animal deal with any anxiety once the decision is made on where they will live. Even an amicable divorce will affect both partners, their children, and the animal.
Decide if the pet should go with the children
Don’t automatically assume the animal should go to the partner that stays with the children. The children may have bonded with the animal, and the animal with the children. However, being the sole caretaker of both children and pets is difficult. A person that retains custody of both may find they are taking on more responsibility then they can handle.
In custody proceedings, Puerto Rico law does mandate that a court take into consideration the best interest of the children. There may be circumstances where being separated from the animal will cause demonstrable emotional pain to the child. In those situations, the court may order the pet go to the same household as the child.
Temporary agreements make changes easier
With that said, temporary arrangements are a great idea! One party may find themselves holding on to an animal as a way to continue engaging with their former partner. They may also hold on to the animal because they cannot completely disengage from the relationship. If custody arrangements are temporary, each partner will have the opportunity to reassess their new lifestyle outside the relationship. After a period of time, the initial trauma of the separation will wear off. A person can then make a better assessment of how the animal fits with their new living situation. If the parties need more time, they can always extend the agreement!
Just because joint custody is available, does not mean it is the best option
Sometimes the love we feel for our pets, and our need to be with them, can cloud our judgment on what is in their best interest. Sharing physical custody of a pet involves them going back and forth between household. This may not be the best solution for an animal that does not adapt that well to change. Some animals need stability and consistency, or are easily stressed. These animals are usually better off staying in one home.
Try to keep the pet in the family
There is always the possibility that the partner awarded final custody over the animal finds they cannot handle animal by themselves. They may also find their lifestyle is not conducive to keeping a companion animal. In these circumstances, it is best to offer the animal to the other partner first before surrendering the animal to a shelter. This provides continuity for the animal. Additionally, a substantial number of animals that end up in shelters come from divorced households.
Don’t leave the issue of pet custody hanging
Address what will happen with the pet immediately. Decisions affect not only the ex-partners in a separation, but also the animal. Do not use the animal as a tool to extend litigation, or to get revenge on an ex. This is not only unhealthy for people, but also for the animal.
Additionally, if the family pet does not go to the same household as the children, the parent that remains with the kids should not get another pet just to appease the kids. Instead of making a hasty decision to deal with loss, or to recreate a home, wait and find out if your new lifestyle is conducive to having a pet.
How does pet custody fit into animal law?
Pet custody is not the most pressing animal law issue. However, by passing laws addressing pet custody, and admitting pet custody cases into courts, the legislature confirming the importance of the issue, and the important place pets hold in the household.
Additionally, court can emphasize the responsibility we have towards pets we bring into the household. In the November 2021 Puerto Rico Superior court case addressed earlier, the judge made some statements referencing the parties responsibilities towards the animals involved. The court also ordered both parties share responsibility for the maintenance of the animals, even though only one person was choosing to keep these animals in her care.
Any legal statements or orders that address our responsibilities towards pets and other domesticated animals are a positive thing for the animal movement in general.
Thank you for reading!
If there is an issue that you think I need to cover, contact me and let me know what it is and tell me why you feel so strongly about it. Until next time!