How is Pet Custody Determined in Family Court?
Although many of us treat our “fur babies” like family, the court system does not view them the same way. In the eyes of the law, pets are actually decided similarly to how property is divided in the event of a divorce. However, the law’s treatment of pets does not mean that you will necessarily lose time with your precious loved one.
Although the Court will distribute a pet like any other item of property, the Courts are generally sensitive to the importance animals have on our lives. One factor considered by the Court is the date the pet was bought. If an animal was bought before the marriage, then the pet belongs solely to whomever initially bought said pet. This is because the pet is technically considered a form of separate property. On the other hand, if the pet was bought during the marriage, the pet is considered marital property, unless there is a spousal agreement stating otherwise (such as prenuptial agreement, postnuptial agreement, or other spousal agreement). When parties are discussing the division of property as a result of separation or divorce, the focus of the division is everything involved in the marital estate. When discussing pets specifically, the Court will also consider the care and relationship a party has with a respective pet.
Marital property disputes, like other family law matters, can be settled outside of the courtroom in the form of mediation. Mediation is the process by which a neutral third party helps both parties to negotiate which property goes to whom. If you are particularly interested in retaining custody of your pet, this may be a great option to explore. Parties can be a lot more creative in a negotiation or mediation process than a Judge can be in a Courtroom. Simply put, a Judge will say the pet goes to Party A or Party B. In a negotiation or mediation, the parties could agree to a “pet custody schedule” instead.
The Future of Pet Custody
In this day and age where families spend thousands of dollars to give their pets the best live’s possible, it seems unreasonable that the law could view them as property. In some states, there are actually laws in place that require a judge to consider the pet’s potential well-being. As of 2022, New York, New Hampshire, Alaska, California, and Illinois all have laws addressing the care of pets. There are other states that have introduced similar bills.
This year, British Columbia has also introduced Canada’s very first pet custody law. This legislation would be an amendment to the current divorce and separation laws under British Columbia’s Family Law Act. The aim of the act is to modernize the laws surrounding pet distribution following a divorce and making the transition slightly less difficult on families. The amendment would take into account a child’s relationship with a pet, any history of violence from either party, as well as the well-being of the animal. Attorney General Niki Sharma who introduced the amendments said that they, “better reflect the priorities and values of people today, including making sure the important role pets play in families is considered in the separation process.”
The research shows that a bill such as British Columbia’s would reflect the values of American families as well. A SMU sociologist, Andrea Laurent-Simpson, declared that family structures are changing as a result of our love for our furry companions and their inclusion into our families. The American Veterinary Medical Association found that nearly 85 percent of dog-owners and 76 percent of cat-owners think of their pets as family. Although there does not tend to be much sociological research on the dynamics of “multi-species families” as Simpson calls them, there may be more research in the near future. Perhaps, if more research is done on how pets play a crucial role in the family dynamic, the mental health of family members, and the inability to truly value everything a pet has to offer, the law may begin to recognize pets as family, not property.
If you or someone you know is worried about losing custody over their pet, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where Theresa’s legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
Inspired by her own experiences with domestic violence and the family court system, Theresa E. Viera became the first lawyer in her family, graduating from the University of North Carolina School of Law. She has dedicated her career to helping families find healthy solutions through various legal tools, including negotiations, mediation, collaborative law, and litigation when necessary. With years of experience in Family Law, she strives to inspire others and make a positive impact on the lives of her clients, just as her mother’s attorney once inspired her.
