Can you have shared custody of a dog or cat? Here in California, pets acquired during marriage are presumed to be community property. This means that in a divorce, the family court will divvy up pets similar to dividing furniture or vehicles. One spouse gets the pet, the other doesn’t. In my experience, California family courts will not order a shared custody arrangement of a pet if the parties cannot agree. California family courts have not adopted a best interest standard for pets, which is used to determine custody of children. Children are almost always subject to some type of shared custody arrangement between divorced spouses or domestic partners, and custody can be modified when circumstances change. However, with pets, one side wins and the other loses forever. Still, family courts should not put a pet into a situation where it is likely to be mistreated. Family courts should therefore consider the psychological attachment which each party has to a pet before making a decision on who gets Fido or Fluffy.
In at least one area of California law affecting families, pets have gained important legal rights. The victim of domestic violence can obtain a restraining order that will award them the sole possession, care and control of their animals. The victim can also obtain an order that the perpetrator of domestic violence stay away from the animals and not “take, sell, transfer, encumber, conceal, molest, attack, strike, threaten, harm or otherwise dispose of the” animals. The heading for this order states: “Animals: Possession and Stay-Away Order.” Although this law extends protections to animals, it does not use the words “sole custody” to describe that protection. This seems to put animals somewhere between property, such as a vehicle or residence and children. Or does it? Consider that the restraining order states that the alleged committer of domestic violence is ordered not to “molest, strike, threaten, or harm” the animal. This language is the same language that is used to protect the victim of domestic violence and their children.
Is the California legislature’s decision to extend protection to our animals in domestic violence cases a harbinger of expanded rights for our pets in future divorce cases? That is a difficult question to answer. With the exception of the aforementioned restraining orders, there is no California law that deals with pet custody in divorce. A family court should, however, consider whether awarding a pet to one party would subject the animal to abuse, before making that award.
While there is no published California Appellate Court case that directly deals with pet custody in divorce, the emotional link between humans and pets was recognized by former California Supreme Court Justice Armand Arabian in his dissenting opinion in the case of Nahrstedt v. Lakeside Village Condominium Ass’n (1994) 8 Cal. 4th 361, 393, 394. At issue was a condominium association’s restrictive covenant which banned pets. Justice Arabian wrote:
“The value of pets in daily life is a matter of common knowledge
and understanding as well as extensive documentation. People of
all ages, but particularly the elderly and the young, enjoy their
companionship. Those who suffer from serious disease or injury and
are confined to their home or bed experience a therapeutic, even
spiritual, benefit from their presence. Animals provide comfort at
the death of a family member or dear friend, and for the lonely can
offer a reason for living when life seems to have lost its meaning. In
recognition of these benefits, both Congress and the state Legislature
have expressly guaranteed that elderly and handicapped persons living
in public-assistance housing cannot be deprived of their pets.
(12 U.S.C. §170r-1; Health & Saf. Code,§19901.) Not only have children
and animals always been natural companions, children learn responsibility
and discipline from pet ownership while developing an important sense
of kindness and protection for animals. Single adults may find certain pets can afford a feeling of security. Families benefit from the experience of sharing that having a pet encourages.”
Even the Court’s majority agreed with Justice Arabian when it came to the emotional bond between humans and pets, but decided the case against the pet owner on the narrow issue of whether the restrictive covenant was legal. The reasoning of former Justice Arabian might be the starting off point for a party who seeks joint physical custody of a family pet in a divorce. Meantime, the idea that pets are merely property is being challenged in family courts across the nation. Combined with numerous cases on pet custody from other States, so-called secondary legal authority that California Courts may consider, the time may be ripe for a California Appellate Court to consider pet custody.
To avoid a pet property or custody dispute, parties might want to consider a pet prenup, which will dictate who gets Fido or Fluffy in a divorce. Or, if you received your pet as a gift from your spouse or a third party, make sure you get that in writing and keep the writing in a safe place.
A final note about sharing pets. Animal experts tell us that if divorced parties decide to share a pet, they should make sure the pet eats the same food at each residence to avoid stomach upset and that the disciplinary rules should be the same at each residence. Animal experts also tell us that shared custody may work for a dog, but not a cat. Cat fans might disagree.