If you have a pet, you’ve likely formed deep emotional bonds with that animal.
It’s not uncommon to hear Americans use terms like pet parent and fur baby. The 2021-22 National Pet Owners survey by the American Pet Products Association found that nearly seventy percent of U.S. households (90.5 million families) have pets. And a study by the American Veterinary Medical Association revealed that 85% of dog owners and 76% of cat owners consider their pets members of the family.
There’s been relatively little sociological research on this dynamic but in her 2021 book “Just Like Family: How Companion Animals Joined the Household,” SMU sociologist Andrea Laurent-Simpson argues that the concept and structure of family have evolved to include our non-human companion creatures—that we actually form multi-species families.
Many families factor their pets into every significant decision: housing, job, child-rearing, budget, travel, and more.
Perhaps nothing has illustrated this so pointedly as Hurricane Katrina in 2005. A Fritz Institute survey found that 44% of New Orleans residents chose to stay home and face a devastating storm rather than evacuate because they would not abandon their pets. As a result, in 2006, congress passed the PETS Act, giving FEMA authority to provide rescue, care, shelter, and essential needs for household pets during a major disaster or emergency.
New legislation reflects a growing awareness of people’s relationships with their animal companions. Over the last couple of years, several states, including New York, New Hampshire, Illinois, Alaska, and California, have passed bills acknowledging that we need to consider this in family law. Several other states, including Florida, Texas, and Vermont, have had recent court cases that prompted a review of how the law views pets and ultimately applied similar standards.
Historically, the law has viewed pets as possessions—no different than the furniture, television, dishes, or family car. In a community property state like California, when a marriage ended, the family pet was part of the marital assets to be divided by the court. Suppose a dispute arises between spouses over who should get the pet. In that case, a judge will use various types of records—licenses, payments for purchase, adoption contracts, veterinary and microchip documents, etc.—to determine ownership. There was no provision to consider the well-being of the animal.
But a 2019 law changed how pets are handled in a divorce.
Technically, under California law, pets are still property. Although “pet custody” is commonly used outside the courtroom, it’s not an officially recognized term—legally, it’s still “pet animal ownership.” However, Assembly Bill 2274 made two very significant changes:
- It required the court to determine sole or joint pet ownership when one of the parties requested.
- Gave judges the power to consider the animal’s welfare when deciding who gets the pet.
Though the signed version of AB2274 falls a bit short of an earlier draft that would have required judges to consider the animal’s best interests, it’s still groundbreaking in that it authorizes the court to treat pets as more than chattel.
According to California Assembly member Bill Quirk, “The signing of AB 2274 clarifies that courts must view pet ownership differently than the ownership of a car, for example. By providing clearer direction, courts will award custody on what is best for the animal.”
In awarding guardianship of a pet, a judge may now evaluate a wide range of factors, such as: Who acquired the pet? Who was the primary caregiver? Who walked, fed, played, groomed, and went to vet appointments? Is there clear evidence that one “parent” can better provide for the animal’s needs (outdoor space, etc.)? A judge may also look at the emotional connection between human and animal and consider how custody of the pet might impact a person’s well-being. The court can create “shared custody” arrangements and/or assign temporary guardianship, ordering one party to care for the animal until the final determination of ownership.
Pet custody can be a hot-button issue in any divorce. Particularly among childless couples, it is sometimes one of the most contentious matters.
When you’re going through a divorce and have a cherished pet, it is in your best interest to try to agree on pet custody—a legal battle can get long and expensive. Mediation may be a good option if you and your ex cannot come to an amicable decision. It can keep costs down and bring a relatively swift resolution.
If you’re concerned about pet custody, speak with an experienced family law attorney at SFLG. We know this is a complex, emotionally loaded, and misunderstood issue. We offer compassionate, experienced guidance in navigating all areas of family law.
By Debra Schoenberg