Written by Christopher H. Macturk and Taylor R. Fisher
A 2018 study conducted by OnePoll revealed that of the 3,500 dog owners surveyed, 86% would break up with their romantic partner if that romantic partner did not like their dog.
It comes as no surprise that we place a premium on the opinions of our pets, but do the Courts consider our pets’ opinions when determining where “Rover” and “Peaches” live after a divorce?
The short answer is no.
The long answers is also no, but some Judges around the country have provided us with clever and creative opinions on the subject of custody of pets.
When asked to determine the custody of a parrot named “Caesar,” Judge Philip I. Adler of Indiana quipped the parties could establish “Parroting Time Guidelines, not dissimilar to the Indiana Parenting Time Guidelines” or invoke a “Solomon-like justice and give Caesar to a third party, possibly a lonely pirate.”
When a court is asked to determine the “best interests” of a child, it considers certain “factors” under the law. One of these factors the child’s reasonable preference (assuming the child has the requisite intelligence, age and maturity to express a preference).
Can a Pet Have a Custody Preference?
While you may be able to determine a 14-year old boy’s preference, how could you determine the same of a pet?
Judge Fredrick A. Larson of New York wrote in a 2019 “is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or ‘its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.’”
If courts will not consider a pet’s preference when determining who the pet will live with, what does the court consider?
Courts in Virginia treat animals, no matter how articulate and intelligent (or adoreable) as “chattel.” Chattel is a term for moveable, tangible personal property. Examples include cars, clothes, kitchen tables, and your son’s stinky basketball shoes. Because pets are property, there is no visitation schedule, pet support, or holiday routine to be determined by the court – only a determination of who will own the property, if the property will be sold and the proceeds divided, or if one party will buy out the other’s interest in the property.
The property division approach does not translate well to the custody of pets. Unlike a collection of Beanie Babies, we cannot give one party the front half of Rover and the back half to the other. Similarly, we cannot expect a couple to sell their pet and divide the proceeds.
Unfortunately, in the arena of personal property division there is a clear winner and a clear loser – one party retains 100% ownership of a pet and the other is left with only memories of the good times.
Enforcing Custody of Pets Would Be Like Herding Cats
There are other examples why courts don’t award “custody” of pets. For example, how do you enforce a pet custody order?
Judge Wolf of the District Court of Appeals of Florida, First District wrote: “Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the proceedings in the instant case). 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.”
Justice Matthew F. Cooper, of the Supreme Court of New York provided an alternative approach in a “best for all concerned standard.” When considering one family’s beloved dog, Joey, the Justice wrote, “In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.”
The Court went on to explain, ”To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey’s needs (i.e. feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis?”
This analysis is a major shift from the traditional personal property approach which does not take into consideration the health or wellbeing of the animal in question. Here, we have an approach that reaches a conclusion based on the impact of the pet on the parties as well as the parties on the pet rather than a simple transactional approach.
For now, Virginia continues to classify pets as personal property and divide them as such. If you do separate in Virginia, and need to rely on the courts to decide your pet’s fate, you and your pet may be in for a “ruff” ride.
Ready to take the next step? Tell us a little about your situation here and a representative from Evolution Divorce will contact you to schedule your initial consultation; or call us directly at (804) 793-8200.
You May Also Like
1. 86% of Adults Would Break Up With Partner Who Doesn’t Get Along With Their Dog. Ben Renner. Study Finds. May 28, 2018. https://www.studyfinds.org/most-people-break-up-with-partner-doesnt-get-along-with-dog/
2. 86% of Adults Would Break Up With Partner Who Doesn’t Get Along With Their Dog. Ben Renner. Study Finds. May 28, 2018. https://www.studyfinds.org/mxfd
3. Res Gestae-Volume 52, No. 8, Pg. 50. Honorable Judge Philip I. Adler. The Custody of pets: Who gets the dog?. (Indiana Res Gestae). April 2009.
4. Finn v. Anderson, 64 Misc.3d 273, 101 N.Y.S.3d 825 (N.Y. City CT. 2019).
5. Bennett v. Bennett, 655 So.2d 109 (Fla. App.1995).
6. Travis v. Murray, 2013 NY Slip Op 23405, 42 Misc.3d 447, 977 N.Y.S.2d 621, 631 (N.Y. sup. Ct. 2013).