Many pet owners wonder what will become of the family pet during the divorce process. When it comes to ‘furry members’ of the family, many clients are under the impression that the pet’s “custody” is viewed by the court in a similar light as would be child custody. In the State of California (and many other states), this is usually not the case.
Pets are considered personal property and it comes down to ownership of the pet rather than “custody.” Some Judges do make their decision based on the best interest of the pet. In fact, the California Family Code section 6320 protects an animal if there is a reason to believe that one of the parties may cause harm to the pet.
California also protects animals in situations involving Domestic Violence. If a Domestic Violence Restraining Order is put in place, the animal may be listed as a protected party – and may also require that law enforcement to remove animals from the Domestic Violence situation. If this is the case for you, please be sure to inform your attorney so that your pet may also be protected.
Of course, deciding the “custody” of the family pet isn’t always so black and white. In a lot of families, both animal ‘parents’ are not involved in a domestic violence situation and both still wish to keep the pet – and then ultimately sometimes come to blows over it – literally or figuratively. There are a few different options for you to consider and discuss with your attorney.
If there are children involved, one option is to share “custody” of the pet the same way you would share custody of the child. Of course this can be a complicated approach, but if the child is attached to the pet, it may help for them to have their furry ‘buddy’ with them at both parent’s homes during their respective custodial time. As long as there is an agreement between the parties (preferably in writing) this may be the best approach for you.
Another factor Judges may take into consideration when determining the custody of the family pet are finances. Some families may agree to split the cost of the pet (especially if they have decided on “shared custody”). There are other separation situations where the earning power is unequal between the parties. If this is the case, the Judge may be inclined to award custody of the family pet to the parent most financially stable and capable of caring for the pet.
If the pet belonged to one of the party’s prior to the marriage, then the pet is considered theirs (as generally they are considered property), and that would be taken into consideration when determining where the pet goes after a divorce.
Sometimes people will use pets as a bargaining tool. If you should truly want custody of the pet, your attorney may suggest offering up something else to the other party in return for custody of the pet.
The ‘cleanest’ route when it comes to deciding what to do with the family pet is to have a pre-nuptial agreement written prior to the marriage, and to include terms of what to do with Fido in the case of a divorce. Having a written agreement on paper could help avoid the issue entirely ‘down the line’ if you were to find yourself in a divorce situation. With a pre-nuptial agreement, upon divorce your attorney can simply apply the terms of the pre-nuptial agreement to your marital settlement agreement and quickly settle the issue of what to do with Fido.
As with most other issues in regards to your divorce, there is no uniform answer with how best to handle the custody of the family pet. It is always important to inform your attorney of your circumstances entirely, and they will help provide you with the best advice tailored to your particular situation.