Nicole Simon and her now ex-boyfriend got an Australian cattle dog mix, Murphy, from a friend of one of her clients.
Simon, a hairstylist, was in the relationship for six years. But toward the end, she worried about who would get custody of Murphy if they split up.
“I was actually scared he wouldn’t let me take the dog, so I probably stayed in the relationship a lot longer than I should have,” says Simon, of Costa Mesa. “I needed Murphy for my mental health, he was my baby. … I am glad that my ex let me take the pup without giving me trouble. If he had given me trouble, I’m not sure what I would’ve done.”
It’s probably not something most of us like to ponder too much in our own relationships, but who gets custody of pets in a divorce?
Pet parents will be happy to know that California made some improvements in laws pertaining to pets during divorce that puts care of the animal front and center.
Gov. Jerry Brown signed AB 2274 on Sept. 27, 2018. It empowered California courts to consider “the care of the pet animal” in cases of divorce or legal separation. Before this, California law generally required that courts divide all community property — property acquired during the marriage, including companion animals — equally.
“Animals were treated no differently than inanimate objects like televisions, cars and furniture,” explains Kathleen Schatzmann, strategic legislative affairs manager at the Animal Legal Defense Fund.
Pets, divorce and the law
The law went into effect on Jan. 1, 2019, and allows courts to create shared custody agreements for companion animals, as well as to enter an order requiring a party to care for the animal before the final decision of ownership is made, Schatzmann says.
“California’s law provides important guidance distinguishing companion animals from other forms of property, where before there was none,” Schatzmann says.
The original version of AB 2274 was worded more strongly to address the well-being (rather than care) of the pet and to require (rather than authorize) courts to take this into account, with the imperative “shall” replaced in the final version with the more permissive “may.” But it is still an important law, she says.
“Treating animals like mere personal property can lead to poor outcomes for the animals because custody is aligned with ownership formalities rather than the interest of the animal,” she says. “By taking into account the unique relationship companion animals have with each of their guardians and their needs, it is more likely that the end result will be better for both humans and companion animals.”
Schatzmann says comparable legislation passed in Alaska and Illinois in 2016 and 2017. Since then, New Hampshire, Maine and New York have enacted similar companion animal custody laws, and there are currently similar bills pending in Delaware and Rhode Island.
What it all means
Attorney Anthony Lai, a certified family law specialist based in Los Angeles, said the law acknowledges the special place pets hold in our lives and recognizes their importance as cherished family members.
“While the default remains that the court is imbued with the duty to divide community assets in dissolution of marriages, the court can now enforce custody and visitation arrangements agreed upon by the parties with pet animals, in the same manner that schedules may be created for sharing custody of minor children of the marriage,” says Lai. “The law shifts the focus from ownership to the best interests of the pet. The new law promotes cooperative discussions and encourages divorcing couples to work together to develop mutually agreeable custody arrangements for their furry friends.”
He says California leads most states in the country on the issue of enforcement of custody agreements pertaining to pet animals. In the majority of states, pets are still considered property under the law — meaning they are subject to the same principles of property division as other assets and possessions owned by the divorcing couple. Pets may be classified as community property, subject to equal division, or as separate property if one spouse acquired the pet before the marriage — which means that the only thing that the court may order is whether the animal is sold or purchased at fair market value by one of the parties.
“Overall, California’s new pet custody law is a significant step forward in recognizing the importance of pets in our lives and their well-being during divorce proceedings,” he notes. “It promotes a more compassionate and considerate approach to resolving pet custody disputes, resulting in happier pets and more satisfied pet owners.”
He says he has already seen the law impact divorce cases. He worked on a case where his client owned a dog prior to his marriage. But during the marriage, the spouse developed a very strong bond with the dog and took the dog with her when she moved out of the home.
“We had to go to court to get an order that his separate property animal be returned to him,” Lai tells. “The case settled shortly after we obtained the order with the parties agreeing on a custody arrangement for the dog.”
He said that anecdotally about one in five contested divorce cases involve some issue of custody of a pet.
Attorney Kathy Minella, a certified family law specialist in San Diego, says now courts can do a “best interests of the dog” analysis, which is very similar to the “best interests of the child” analysis used in child custody and visitation cases.
“It focuses on who feeds and walks the dog, who primarily cares for the dog, who takes it to the vet, etc.,” she explains. “Courts also no longer have to ‘award’ the dog to one party. Instead, courts can actually arrange a custody and visitation schedule and award both parties custody and visitation of the dog.”
This law is significant because it brings us a step closer to recognizing pets are part of the family and should not be handled the same way as a TV or a car during a divorce.
“Many couples view their pets as their children, and this law allows the courts to handle these cases in a way that takes that into account,” Minella says. “To a lot of people, including myself, pets are family and now we can treat them as family instead of just property.
“I think this gives people going through divorce some peace in knowing it is not black or white. Why should people who have fur children be treated any differently than human children?”
