Pet Custody: A Bone of Contention

 Posted on August 21,2014 in Family Law

A Carol Streams couple has been trying to divorce for two years. What is holding them up? It is not a dispute over who gets the house or whether spousal support should be paid. No, this dispute is all about their black Labrador, and who gets custody of him.

With 91 percent of pet-owning Americans agreeing that their animals are members of the family, it should come as no surprise that a bone of contention for some divorcing couples will be who gets the family pet. Unfortunately for animal lovers, family law courts do not seem to have the same feelings about Fido. Therefore, pet parents need to understand how the courts view pet custody, and must also learn what they can do to prepare themselves for a dispute.

How the Courts View “Petimony”

In the eyes of most courts, animals are not family members—they are pieces of personal property that should be equitably distributed along with the rest of the marital estate. Because personal property (like a toaster) does not have feelings and courts do not order visitation for this type of property, many judges have traditionally ruled the same way when it comes to pets.

This view of animals as personal property was enshrined by the 1995 Florida case Bennett v. Bennett. The appellate court found that “While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property.” Noting that the trial court had “no authority” to grant visitation rights for chattel, the justices also recognized that “Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.”

What to Do if You Are Involved in a “Petimony” Dispute

The Bennett view of pet custody is slowly changing. Some courts are now recognizing the bonds between animals and humans, so it is possible for pet owners to convince a judge to determine custody or visitation of an animal.

To begin this process it is important to first recall who bought or adopted the animal. There is still a preference for treating animals as personal property, so the person who is the “owner” of the pet stands a good chance of maintaining custody.

Whether you are the owner of the animal or not, be prepared to show the judge that you are its primary caregiver and so that it is in the animal’s best interests to remain with you. Gather evidence—receipts for food, grooming, daycare—that shows you are the one who provides for the animal’s needs. Get support from friends and neighbors who can state that you are the one who walks your pet and plays with it. If possible, present evidence of any distress the animal may have suffered when you were away from it for a significant amount of time.

Finally, it is very important to show the court that you are not seeking custody for revenge or to prolong the divorce proceedings. If you never showed any interest in the animal until divorce proceedings began, do not start now. Prove to the judge that you are motivated by a genuine concern for your pet, not a genuine desire to get revenge on your ex.

Talk to an Illinois Family Law Attorney

Petimony is a new and developing area of law, but a family law attorney will be in the best possible position to guide you through your case. If you are engaged in a pet custody case, contact the Mevorah & Giglio Law Offices to get the help you need.