IMPORTANT NEW DEVELOPMENTS IN PET CUSTODY AND DIVORCE

There’s big news in the world of animal law. The news comes from of the State of Alaska, and it could have a major impact on some divorce cases here in California. Alaska has become the first state in the country to require courts to take “into consideration the well-being of the animal” and to give judges in divorce cases the power to assign joint custody of pets. In effect, Alaska family court judges will have the power to award custody and visitation of a pet on the basis of what’s good for the pet, not the human owners. This means pets will be treated more like children in divorces in Alaska.

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.

Here’s the potential impact of the new Alaska law on California divorces: There is something called Secondary Authority in the law. When a State’s law is silent on a disputed issue, the courts of that State may adopt the law from another State to decide the disputed issue.

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 perpetrator 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.

Will the California legislature look to Alaska and adopt a similar statute for our Family Code? California has already extended protection to our animals in domestic violence cases, so adopting a statute similar to the one in Alaska might not be much of a stretch for lawmakers.

And, 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. Using the new Alaskan law as Secondary Authority, combined with the reasoning of former Justice Arabian, might be the starting point for a party who seeks joint physical custody or visitation of a family pet in a divorce here in California.

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, because a gift is presumed to be the separate property of the receiving spouse in California.

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 discipline and care for the pet should be the same at each residence. Animal experts also tell us that shared custody may work for dogs, but probably not for cats.

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For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

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