Pet Custody and Divorce

Don’t Let Your Divorce Go to the Dogs

These days, when someone says that their divorce is turning into a dogfight, they may actually be referring to a real dog. While the variety of pets that become the subject of a custody battle ranges from rabbits to ocelots, the vast majority involve dogs, thus solidifying their status as man’s best friend. In one noteworthy case, the friendship was so close that a divorcing California couple spent more than $100,000 fighting over custody of Gigi, a pointer-greyhound mix rescued from the animal shelter.

During the last five years, pet custody issues increasingly have become an issue in divorces. Though partly attributable to the fact that pets now outnumber children in the United States and to escalating divorce rates, the rise in pet-related family law cases also reflects the changing status of pets.

Not so long ago, divorcing parties would fight only about animals having significant monetary value (such as horses) while just assuming that household pets would naturally live wherever the children lived. Since that time, pets literally have come in out from the cold, no longer forced to live chained to a dog house in the back yard. Pets now are accepted into the family home and often function as quasi children, afforded deluxe treatment such as organic antioxidant dog food and play dates at doggie daycare.

When social customs and views change so quickly, the applicable laws often cannot keep pace. Such is the situation with pet custody: while divorcing parties now treat Fido as a beloved family member, Colorado law still treats pets like the coffee table or cappuccino machine – all are items of personal property that will be awarded to one party or will be sold and the proceeds divided.

But by reaching agreement about pet custody issues without the need for a court order, divorcing parties have a cost-effective way to craft a customized pet custody plan. The agreement, a stand alone contract, should not be incorporated into a Decree of Dissolution for complex legal reasons. While an agreement for pet custody must be customized for each particular situation, an agreement regarding pet custody should address four main areas: making decisions for the pet, spending time with the pet, paying the pet’s expenses, and other miscellaneous items.

Decision Making

Similar to allocation of decision making authority for children, the parties may choose to make decisions for the pet either jointly or solely. The types of decisions that the parties should consider include discipline/training, breeding and end-of-life decisions. Discipline and training issues involve questions such as whether both parties will agree to consistently discipline (e.g. whether the dog will be allowed on the couch), what type of training and who will provide it. Breeding issues involve deciding whether the pet will be bred, who will choose the mate and what criteria will be used, how the parties will divide stud fees, and who will determine whether the pet will be spade or neutered. End-of-life decisions can be significant, such as who will determine whether, when and how the pet will be euthanized and, if the pet is to be buried, where the plot will be located and who will be responsible for the cost.

“Visitation”

Major visitation issues include when the pet will spend time with each party, where and when the exchanges will take place, and who will provide transportation. Other items to discuss are whether both parties will feed the same type and amount of food and how a joint custody situation may affect the pet (some breeds of dogs, for example, are friendly to both owners but tend to become especially loyal to just one party or the dog may become confused by having multiple home territories).

Costs

Given that the average dog may live for more than 10 years and costs several thousand dollars a year, how the parties will share ongoing costs can have significant impact. Major issues include determining how costs such as vet fees and food will be allocated between the parties. An important item to discuss is how to handle assumption of costs in emergencies, both because of the very high potential costs involved and the overall high emotions.

Miscellaneous

Transfer of ownership – if the party who took responsibility of the pet can no longer care for it, the other party may wish to have a “first right of refusal.” This might require, for example, that the other party will be given the opportunity to care for the pet before it would be left at the shelter.

Emergencies – by deciding in advance how to handle emergencies, the parties often can reduce conflict and confusion in crisis situations.

A less common but more tragic situation occurs when neither party wishes to keep the pet, often because the pet, purchased jointly during optimistic times, now symbolizes the dashed hopes of a broken relationship. The best solution, rather than attempting to foist the unsuspecting pet upon the other, is for the parties to work together in finding a suitable home.