Handling pet custody in divorce cases

Pet custody is sometimes a heated issue during divorce.

Divorcing couples have a seemingly endless number of decisions to make. If your split is an amicable one, the majority of these decisions can be made in a non-contentious manner, with the two of you being willing to compromise on some things in order to keep the process moving forward. This might mean that one party, for example, takes on a slightly bigger share of the marital debt in order to remain in the shared home, or that one spouse is willing to sell a particular asset in order to have an equitable property settlement.

One issue that, in most states, falls under the purview of "property settlement" but often causes heated debate, is that of pet custody. Most of us wouldn't classify our relationship with our pets as akin to those we have with furniture or collectibles, but under the law, the two are treated similarly in nearly every jurisdiction. Only Alaska has so far taken the unique step of legislating to consider the best interests of a pet when it comes to deciding who gets custody after its owners split.

In every other jurisdiction, including right here in California, pets are still legally considered as property. This means that, in most cases, proof of ownership or pet adoption, and proof of who actually spent money paying for the animal's food and veterinarian bills is usually paramount when deciding to whom a pet should be awarded. Such an arrangement might not end up giving custody to the person who actually loved the pet more or treated it better, but since pets don't necessarily have legal rights (except in the case of abuse or neglect laws), it's the way things have always been done.

Planning ahead

In divorce cases across the country, particularly amongst childless couples, pet custody becomes a "hot button" issue between the parties. The battle for custody of a beloved companion can be nearly as heated as the fight for custody of a child in some situations. Many couples have taken to deciding pet custody via prenuptial or postnuptial agreement, or creating a so-called "love contract" that would ensure that the animal is well taken care of in the event of a divorce or legal separation.

These love contracts will, unlike traditional provisions of a prenuptial or antenuptial agreement, consider such factors as:

  • Who spends the most time with the animal
  • With whom has the animal more closely bonded
  • Who provides the animal with the most exercise, affection, and care
  • Who purchased the animal
  • If the animal was intended as a gift from one party to the other
  • Which party's housing arrangements after the divorce provide a more suitable environment for the pet
  • Whether a shared or joint custody arrangement work

Is it possible for pet custody to mirror child custody. Such an arrangement takes into account that it might be in the children's best interests to not be split up from a beloved pet during an already difficult time. It must be noted, however, that it is not possible to contractually grant child custody in a prenuptial agreement.

Whether you are attempting to plan ahead in case of a split, or you are already involved in a divorce, a family law attorney can help you - and your pet - through the process and on to a better life ahead. To learn more about divorce options, contact an experienced family lawyer like those at the Law Offices of Catherine A. Schwartz. Call our Riverside firm today at 951-335-0510 or send an email to schedule a consultation.