Many people regard their pets as furry children and very much members of their family. So when the family separates, who gets custody of the pets? In some cases, separating couples are able to deal with the issue of their pets amicably through a separation agreement. There is nothing preventing former spouses from agreeing that they will share custody of their dogs or cats. For example, the separation agreement can stipulate that the dog will spend every second week with each "parent". I have even seen separation agreements that provided for the equivalent of child support, and required one of the ex-spouses to contribute to any vet bills . But what if the separating spouses can't agree?
The law in this area is not fully developed, and there have been relatively few court cases which have dealt with this issue. For the most part pets are regarded as property, and no different legally than a chair or a car. They belong to their owner, and usually the Court will not grant "custody" of Kitty or Fido to either party. If the court gets involved at all, it will consider the value of the pet and then order the person who is keeping it to compensate the other party for half its value. But value is defined solely as what you could reasonably sell the pet to a third party; in most cases, household animals such as cats and dogs have no re-sale value whatsoever, and their value as companions cannot be determined in dollars, so this approach really does not address the real importance of pets.
Despite this gap in the law, there may still be ways for the courts to address who gets to keep the family pets. Here are some approaches:
- As a Condition of Custody of Access - This only works if the family has real children, not just the furry kind. When the Court makes an order of custody or access regarding a child, it can also place terms and conditions on the parent. So for example, sometimes orders will state that a parent must have a car seat when transporting a child, or that a certain number of toys or articles of clothing must go back and forth with the child, when the parents exchange care and control of the child. The Court's powers in this area are pretty broad, so it could theoretically order that a child keep its pet, provided that the court determined that was in the child's best interests. So this probably won't work if you have a 6 month old and you want to argue that your pet boa constrictor should stay with the child.
- As an Order For the Use or Possession of Property - When dividing the assets of separating spouses, the court can make an order requiring the transfer of property from one spouse to the other. This is usually done in order to equalize the value of the property owned by each ex-spouse. But the court has broad discretion in this area, and could theoretically order the transfer of a pet from one party to the other, as part of an overall property settlement. Unfortunately the legislation does not provide any guidance as to when this should occur or what factors should be considered by the Judge. For example, should a Judge order the transfer of a dog from one spouse to the other because there is evidence that the dog is more attached to one party than the other, or that the other party is more likely to take better care of it? This approach would seem to create a system of pet custody which is dangerously close to the best interest test used in child custody cases, and so while the Court probably has the power to make such an order, it is not likely to do so.
At the present time there is no law regarding "pet custody," though there probably should be. So unfortunately, lawyers and clients are left in a bit of a murky area when it comes to dividing the family pets. The best advice is to try to be reasonable and resolve things by agreement.