In California, as of January 1, 2019, a judge may make “custody” orders regarding your pet. (AB-2274). This change in the law means that pets are no longer treated exclusively as property to be divided in divorce; they are instead treated more like people, and custody is given to the owner deemed most fit to “care” for the dog, cat, or even, iguana.
While both parties might equally love the pet, the judge will likely take several factors into account:
- Who walks the pet?
- Who feeds the pet?
- Who plays with the pet?
- Who most regularly takes the pet to the veterinarian, trainer, or to other appointments?
- Has one party ever harmed the pet?
- Has one party ever been cruel to the pet?
Bill Quirk, the California Assemblyman who introduced this legislation, told NBC News that he had previously seen judges who had told couples to sell their dog and split the proceeds – just like property. But pets are viewed by so many of us like family, so treating them like property didn’t make sense. Plus, divorce can be difficult on pets, too, as it upends their lives unwittingly. Unfortunately, too often in divorce cases, one spouse may try to use the pet against the other spouse, keeping the dog or the cat in order to upset their ex. This new law puts an end to games like that.
A judge may order that the pet be cared for by one party in the divorce, then grant sole or joint custody to the other party. Whether you receive custody will depend on your ability to demonstrate that you are a more involved and caring custodian to the animal.
One keynote: the law says that the judge “may” assign sole or joint custody. Meaning, it’s not guaranteed that the judge will make orders, but they do have the power to do so if a separating couple cannot determine who should keep the pet on their own.
How to Avoid Having a Judge Make the Final Decision About Your Pet
The easiest way to avoid having a judge award final custody of your pet is to come up with a custody agreement with your ex that gives both of you rights and responsibilities associated with your pet. Many of our subscribers agree that the family dog will follow the children – whichever house they are in, the dog will join them. They also agree on how to apportion costs like food and vet care.
If you want custody, think about ways to help your ex understand the benefits of you maintaining custody of the animal (think: how might I have leverage if we were to litigate). Perhaps you travel less, have better access to dog parks, or perhaps you’ll be the one keeping main custody of the kids. If your ex loves the pet as much as you, in what ways can you ensure they remain part of the animal’s life if they agree to let the animal live with you?
You might also consider consulting with a lawyer. Sometimes there are issues you haven’t thought about but may help your cause. Maybe the pet was a gift to you during the marriage and in that case, s/he might already be your separate property. Or, maybe the dog is helping you to combat anxiety or stress? Before jumping to litigation, think about mediation or having a trusted friend or family member help you guys craft a resolution. It doesn’t have to be a win-lose situation.