When a marriage ends, everything is divided. But what about the family pets that both spouses want? For most pet owners I know, pets are family. The thought of losing them on top of the other setbacks in a divorce is a heartbreaker. But what if your soon-to-be-ex-spouse feels the same way? Is pet custody something you should consider in your divorce?

Pet Custody and the Law

As shocking as it might seem to animal lovers and families with companion animals, most states consider family pets to be property in a divorce. Your beloved Lucky, Roxy, or Bubbles has the same legal status as your couch, checking account, or 401(k) plan.

In most states, there are no laws governing pet custody and, consequently, decisions are not made based upon the family pet’s best interest. This can create some aggressive tactics between warring spouses that do not ultimately contribute to the cat’s or dog’s welfare. When separating spouses cannot decide who receives the family pet, a judge can order the animal sold and proceeds divided evenly. Fortunately for many pet owners, the law is changing in several states.

New Laws Regarding Pet Custody

Alaska became the first state in the US to recognize pet custody. Effective in January 2017, HB147 expressly requires Courts to address the interests of pets when deciding how to assign ownership. The law explicitly allows for joint ownership of a pet as well. In January 2018, Illinois became the second state to require the Court to take into consideration the well being of a pet when determining custody. Effective January 1, 2019, California amended the Family Code to differentiate companion pets from other tangible assets. This distinction empowers Courts to consider the custody and care of pets in both the short-term and long-term phases of divorce proceedings.

California Family Code Section 2605 allows Courts to provide for the “care” of a companion animal (e.g. food, water, shelter, and veterinary care – treats, long walks and belly rubs are optional) during the divorce, as well as assign the ultimate “sole or joint ownership” between spouses, taking into account the care provided.

What’s in the Pet’s Best Interest?

If you live in a state where pets are viewed as property, you will most likely need to work out a custody arrangement on your own. As hard as it is for either spouse to consider relinquishing time with a pet, both should consider the pet’s best interests first. Which spouse has the time and finances to best care for the animal, assuming “visitations” are allowed with the other spouse? If the pet is older or in poor health, can it weather the challenges of alternating homes on a regular basis?

What is best for you might not be best for your pet in the wake of families who no longer live in the same home. If children are involved who transition between homes, it is worth considering including the family pets when custody exchanges happen so that the children and pets can maintain the consistent relationship to which they are accustomed and maintain the loving support system offered by this arrangement.

How to Prove You Should Have Custody

If you have determined that you should have full custody of your pet, there are things you can do to persuade the judge that the animal should stay with you. Some examples of evidence you can use to make your case include:

• Ownership or adoption papers that show you are the registered owner.
• Store receipts to show you bought the pet food, toys, and other items.
• Vet receipts that prove you took care of the animal’s health and attended appointments.
• Photos or certificates showing that you took the pet to training classes.
• Proof that you will be able to house the pet after the divorce in a space that is conducive to what the pet needs.
• Consistent care for the pet post-separation, including payment of vet care, grooming and day camp.
• Primary custody of human children (especially those with special needs who are deeply bonded to the family pets) where custody of fur children would be an aid.

Divorce can be hard on everyone, even our companion animals. Although a Hobson’s choice, I have seen many spouses relinquish custody of a family pet to the spouse who ultimately kept the family home in order to avoid the “fight”. In those cases, they will consider bringing a new pet into the family, especially if there are minor children involved.

Until more states change their laws and provide a clear framework to deviate from treating pets as property, you and your former spouse may have to decide between you the best plan for your family pets.