According to a 2011 report by the American Veterinary Medical Academy (AMVA), 63.2% or six out of ten pet owners considered their pets to be family members. The California Supreme Court has stated “those of us who have cats or dogs can attest to their wonderful companionship and affection.” (See Nahrstedt v. Lakeside Village Condominium Assn (1994) 8 Cal. 4th 361, 368). While it is clear that we as a society cherish our pets not as property but as integral members of our family, the law pertaining to custody of the family pet at dissolution has yet to take this approach.
California currently has one law pertaining to custody of pets, and that is in the context of domestic violence proceedings. Specifically, Family Code 6320(b) provides “on a showing of good cause, the court may include in a protective order a grant to the petitioner the exclusive care, custody or control of any animal, owned, possessed, leased, kept, or held by either the petitioner or respondent or a minor child.” But the question remains, how do courts address custody of pets when there is no threat of domestic violence?
At divorce when the parties have minor children, the focus is on the best interest of the child when determining custody and visitation. However, there is no such standard for determining custody of the family pet in California. Instead, the family pet is characterized as property at divorce. As such, any determination by the court will be a determination of ownership, rather than custody, unless the parties’ can agree otherwise.
Therefore, the spouse with the strongest rights to the family pet at divorce are those who can trace ownership to separate property which is defined by Family Code § 760 as “all property owned before marriage” and “all property acquired after marriage by gift, bequest, devise or descent.” In some instances the court will not just look to ownership of the family pet, but will look to see who took care of the pet. For instance, the Court of Appeal in Ballas v. Ballas (1960) 178 Cal. App. 2d 570, 572-573, awarded the parties Pekingese dog acquired with Wife’s personal funds to Wife, although they found it was immaterial whether the dog was her separate property or community property.”
Ultimately, the general approach is to award the pet as property. For example, in one California case, two poodles were awarded as community property. The Court of Appeal held there was sufficient evidence in the record to support the finding that the dogs were community property, as they were acquired after marriage with community earnings.[1] Yet another case held that a dog was acquired by the husband with his own funds prior to marriage. Upon separation, the Wife temporarily took care of the dog. In this instance the Court of Appeals, awarded the dog to husband and held it was husband’s separate property. 2
Other jurisdictions have taken a softer approach; the Vermont Supreme Court for instance applied what some might arguably consider a best interest of the dog standard. In Hament v. Baker, VT, Apr.25, 2014, the Vermont Supreme Court held that the trial court’s identification and consideration of various factors in making its decision, including the parties’ treatment of the dog, the dog’s welfare, and its emotional relationship with the parties, was appropriate.
Whatever the jurisdiction, it is clear the law has yet to catch up to the feelings of many pet owners regarding their pets. As such, it is best in a dissolution proceeding to consult with an experienced family law attorney who can assist you with navigating the issues of your case and provide alternative solutions such as stipulated agreements regarding custody and visitation of your pets.
At Bremer Whyte Brown & O’Meara, we understand pets are important members of your family and play an important role other than mere property. We are here to assist you during this difficult time of your life. Contact us today!
[1] (Mears v. Mears (1960) 180 Cal.App.2d 484)
2 (In re Marriage of ALICE KATHLEEN ISBELL and DANIEL MARK WILLOUGHBY. ALICE KATHLEEN ISBELL, Appellant, v. DANIEL MARK WILLOUGHBY, Respondent. (July 26, 2005, B173850)__Cal.App.4th__ [2005 Cal. App. Unpub. LEXIS 6500].)