Pet custody in divorce can be very contentious. Many pet owners are as close to their pet as a parent to their child. Further, pet owners often refer to themselves as the mother or father of their pet who they adopted, not purchased. However under Colorado law, pets are still characterized as an item of personal property subject to “equitable division”. In other words, in the midst of a highly contested divorce action, the fate of a pet’s future residence may be as precarious as the living room sofa.

For the most part, judges do not want to get involved in pet disputes and will advise the parties that if they cannot agree as to whom will get “custody” of the animal, they will either need to sell the pet or find it a good home elsewhere. Some judges however, are willing to consider what is in the pet’s “best interest” when deciding which “parent” will ultimately get custody of the animal. Thus, it’s important to know who your judge is and whether or pet dispute are typically addressed in that courtroom.

In evaluating what is in a pet’s best interest, a judge will often compare the future living arrangements of both parties and with whom the pet would be most comfortable. Thus in a custody case involving a large dog, the party with an ample yard certainly has an edge over the spouse who is moving into a high rise apartment. A judge may also consider which party has the ability to spend the most time with the animal and can afford the animal’s day-to-day care, including veterinarian bills. Additionally, the history of the parties’ participation in the day-to-day care of the animal is critical. As such, a party can make a very persuasive case for custody if during the marriage, s/he was the primary caretaker of the pet and was responsible for such daily tasks as feeding, grooming and exercising the animal.

One way to get around the pet custody battle is to plan ahead by drafting a pet “ante-nuptial” agreement that spells out how various issues will be resolved in the event that the parties get divorced. A good agreement considers the following:

  • Which party will get residential custody of the pet should the parties separate or divorce?
  • Will the other party have visitation or “parenting time” with the pet?
  • How much visitation? (Note; a detailed visitation schedule may be a good idea)
  • Who will be responsible for transporting the animal for visitation?
  • How will the parties allocate pet expenses including food, grooming, kennel and veterinarian costs?
  • Whether the parties will share joint decision making responsibility for major medical issues. This should include whether euthanasia is appropriate in the event that the animal is diagnosed with a fatal illness or suffers a horrific accident.
  • How will cremation or burial expenses be allocated between the parties?
  • And, yes, who will keep the deceased pet’s ashes?

Should the parties find themselves involved in a dissolution without a pet ante-nuptial agreement to fall back on and pet custody becomes an issue, it is so important that they put aside their ill feelings for one another and focus on what custody arrangement truly is in the pet’s best interest. A party should never use a cherished pet as a way of controlling, maintaining contact with or hurting the other party. Pets are not emotional pawns! Even worse, some perpetrators of domestic violence use cruelty to the pet as a way to control another parent, or even a child.