Really? Isn't it just a piece of property like a couch? Why fight over it?
While animals sadly still have the same legal status as a toaster in the United States and much of the world, there has been a growing push to elevate them to a more logical spot between personal property and human beings. As society has become increasingly mobile and fast-paced and people move far away from family and friend into ever larger, more crowded metropolitan areas where almost everyone is a stranger, the importance of companion animals has grown exponentially and will only continue do so. More than 80 percent of pet owners now consider non-human animals living in their household "family members" as much as any blood relative; about 70 percent regard them as nonbiological "children." Which is exactly why custody battles over Rover and Roxie are becoming ever more common and heated. National family law expert Gary Skoloff notes: "Judges consider pet custody a legitimate issue. Many of the same arguments pertaining to child custody fit and no judge laughs at this."
So how exactly then should disputes over pet custody be handled?
Treating custody disputes involving pets like those involving children actually makes a lot of sense. While obviously not the same exact thing--e.g., non-human animals cannot be our flesh and blood or literal children--they both have similar needs and evoke similar rights and duties. Neither is (yet) fully capable of taking care of itself and instead requires the "care, custody and control" of adult human(s) to survive and thrive. Promoting the "best interests" of each requires many of the same things: o touch, nurture and emotional support; o Nutrients (food, water/milk); o Bathing/grooming/toileting; o Shelter, protection from the elements; o Safety, including safe transport (car seats/seatbelts); and o Medical care, e.g. birthing assistance, vaccinations and treatment of any illnesses or injuries.
Similarly, addressing and resolving disputes can just as easily be had for pets as for children on topics as varied as legal decisionmaking, physical custody, visitation and support.
So what's the most likely outcome (you can't split the canine or cat any more than you can split the baby)?
If the "pet parents" cannot agree, family-court judges typically will designate one ex-spouse or ex-partner as primary physical custodian of the animal or animals at issue. It is also much easier and practical, as you are unlikely to see "parenting time"/"visitation" ordered in as frequent, extensive or detailed a manner as with children. It usually is a lot less formalized; for one, you don't have to worry about a pet's school schedule. Unless there has been animal cruelty or abuse--which is a whole different animal, so to speak--Tuffy or Tiger likely will be just as safe and happy hanging out with "Mom" or "Dad" whenever, wherever, doing whatever. If the parties are in a particularly pitched fit about who gets whom, the court may look to such factors as which person provided the majority of the pet(s)' care, bought the food/treats/toys/bedding, fed/watered, took to vet, licensed, trained, walked, took to dog park, etc. It is always helpful to have receipts, witnesses or other proof.
The intriguing connection between children and animals
One of the most interesting things I have learned in my study of and work in family and animal law has been the long-standing connection between child and animal welfare. There is the famous case of a little girl named Mary Ellen in 1800s New York who was a child slave (yes, they used to have those). A public agency used statutory authority for abused animals to intervene on behalf of this abused child, who was daily cut by her female master with scissors and suffered other horrific abuses. It helped Mary Ellen and also led to the establishment of the ASPCA, the first major animal-welfare organization in the United States. Today there is a much documented and proven link between animal cruelty and abuse of children. Almost to a person all serial killers started out torturing animals as young children. This is why any kind of animal abuse by anyone should always be taken seriously as it can be a precursor to/accompany violence toward fellow human beings in the household and beyond.
This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.
Additional resources provided by the author
Joan Lowell Smith, Pet Custody No Laughing Matter, N.J. STAR-LEDGER, Mar. 9, 1997, available in 1997 WL 8052984.
Katherine Shaver, Whose Best Friend Is She Anyway? Divorce Judge Asked to Enforce Visitation for Pet Dog, WASH. POST, Dec. 4, 1999, at A1 (discussing Assal v. Kidwell, No. 164421 (Montgomery County, MD Cir. Dec. 3, 1999).