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Custody fights: Who gets the pets?

A woman and her pet on an errand in LA. (Photo: oneinchpunch, via Shutterstock)

California judges can now consider what is in the best interests of a pet when deciding animal custody cases in divorce disputes.

A new law that went into effect Jan. 1 is intended to elevate pets above other community property like furniture or cars.

While animal-rights advocates love the new rule, family-law attorneys worry it will just give warring spouses one more thing to bark about.

Pets can become a bargaining chip in contentious disputes where emotions run high.

The San Francisco Society for the Prevention of Cruelty to Animals considered it a “no-brainer” to champion, said Brandy Kuentzel, the group’s general counsel.

“Most people in California understand and appreciate that pets are different than personal property like computers or couches,” she said.

Pets can become a bargaining chip in contentious disputes where emotions run high, Kuentzel said. Sometimes one person might be more attached to the pet than the other. Since the pet has been considered community property, a judge could order it to be sold with the spouses splitting the proceeds.

It’s become more common for spouses to argue about pets in court. A 2014 survey by the American Academy of Matrimonial Lawyers showed a 22 percent increase in pet custody hearings.

In the survey, 27 percent of respondents noticed an increase in the number of couples who fought over a pet over the last five years prior to the survey. Dogs and cats were the most common, but other animals caught up in disputes included horses, an iguana, python, an African gray parrot and a 130-pound turtle, the attorneys said.

“While pet ownership may not be a fundamental right as such, unquestionably it is an integral aspect of our daily existence…” — Armand Arabian

The new law defines care of the animal as including “prevention of acts of harm or cruelty” and “the provision of food, water veterinary care, and safe and protected shelter.” It also allows the court to award join custody of the pet.  The idea is to prevent a spouse ending up with a pet he or she doesn’t want and neglecting it when the other spouse would have willingly taken care of it.

Similar laws were recently approved in Alaska and Illinois.

California law already recognized that pets are more important than community property in that domestic violence protection orders can extend to animals. In 1994, California Supreme Court Justice Armand Arabian wrote: “While pet ownership may not be a fundamental right as such, unquestionably it is an integral aspect of our daily existence, which cannot be lightly dismissed and should not suffer unwarranted intrusion into its circle of privacy.”

Assembly member Bill Quirk, D-Hayward, said in a press release last year, that the law is an improvement to pet safety and welfare. “[A]s a proud parent of a rescued dog, I know that owners view their pets as much more than just property,” he said in the statement. “They are part of our family, and their care needs to be a consideration during divorce proceedings.”

“Courts don’t want to deal with it because they have so many more issues to deal with.” — Dorie A. Rogers

But the Association of Certified Family Law Attorneys is not as thrilled about the change. While family-law attorneys love pets as much as anybody, they fear that the new law will unnecessarily clog the court system.

“Family law is already so litigious,” said Dorie A. Rogers, who is the group’s associate director of legislation. “I’ve been doing this 30 years, and it’s changed so dramatically. Our reaction was, ‘Oh no, one more thing that will be litigated.’”

She fears that pet custody hearings could become something like child custody hearings with all the lengthy hearings and evaluations that that entails. With some couples who delay having children or choose not to have children at all, the pets serve as kids.

She also wondered how attorneys will prove the well-being of the pet. Will they have to call in animal psychologists? She wonders if a whole new class of experts will emerge to make money off the court system.

“Courts don’t want to deal with it because they have so many more issues to deal with,” Rogers said.

Up until now, family-law attorneys could head off trouble by telling their clients that courts consider pets property. “Usually people worked it out,” she said. “Rarely has it gone to major litigation, because it’s costly. Now we’ve elevated it as an issue.”

Rogers said she has two cats and loves them very much but doesn’t like the ideas of divorce pet-custody wars.

“I don’t want to add one more layer of emotion,” she said. “I understand people’s hearts in this, but good ideas sometimes make bad laws.”

 


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