When a married couple divorces, the question of who gets to keep the pets often arises. Whereas the laws are designed to protect the best interests of human children in divorce (allowing for shared custody, visitation, and alimony), the laws for pets are intended to benefit the owner instead. Under the law, pets are considered to be personal property, capable of human ownership and control. Courts working under that law only strictly have authority to award a pet to one owner or the other. To grant shared custody or visitation of the couple’s pets would be exactly the same, in the eyes of the law, as having them trade their television back and forth from one week to the next.
Normally, before a court decides who gets what property in a divorce, it must first consider whether its jurisdiction is a community property (split 50/50) or an equitable distribution (split fairly) state. It must then decide which property actually belongs to the couple (rather than to just the husband or the wife) and how much each piece of property is worth. Finally, it will take into account whether the couple already has some sort of agreement about who gets what (a prenuptial or postnuptial agreement). Even in deciding who gets the pets, the court goes through these same steps.
Because pets are becoming such a big part of our lives, some courts are beginning to change this analysis, and are willing to treat pets more like children. To date, this has primarily occurred with dogs. Courts have considered the best interest of the pets in determining who gets custody of them. They have also awarded shared custody, visitation, and alimony payments to the owners. If a court is unwilling to do this, owners often work out a contract between themselves instead.
Even if the laws were to change to allow for broader considerations in determining pet custody, there are still unanswered questions (for example, which relationships and which species should qualify for protection). For now, creative arguments from the parties and open-mindedness on the part of judges are just starting to lay the groundwork for future case law. The potential for changes in pet custody laws seems to be at a peak.
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To read an in-depth legal analysis, see the Detailed Discussion.