Who Gets the Dog? Pet-Parenting Through Divorce

Watch our video conversation with FPS attorney Neil Forester and read below for supplemental information related to pet custody and how pets are treated in situations involving domestic violence.

 

In my role as board president for nonprofit NorCal Boxer Rescue, I sometimes need to counsel rescuers and foster families about situations involving dogs fighting in the home. In my role as board president for nonprofit WEAVE, we sometimes need to fight for dogs to be able to escape domestic violence with their pet parent.

And when it comes to divorce, I sometimes need to counsel my clients who are fighting over dogs. Sadly, it’s nearly always emotionally charged, even for the animals.

While the legal spectrum continues to evolve with respect to handling disputes over custody of companion animals, there are still some hard truths about these situations.

In California, Pets Are Property. Period. In most states, family courts will treat pets as property for the purposes of division, whether separate or community in nature. But that may be changing. This year, Alaska became the first state to enact pet-custody legislation, giving a judge power to consider the best interests of the animal in a divorce or separation.

Avoid Courtroom Drama. Generally, it’s best to keep the courts out of the conversation, unless in situations of abuse. When bringing animals into the home environment, pet parents can plan ahead through the use of premarital or cohabitation agreements. These types of legal contracts will most likely be enforceable, though you should have them drafted or reviewed by an experienced attorney. Absent such arrangements, we advocate alternative resolutions such a mediation, arbitration or private settlement to handle pet-property disputes and visitation agreements. Keep in mind some courts feel it is wasteful to consume scarce judicial resources on pet-parenting matters.

When Litigation Looms. Sadly, emotional attachment to a pet is often used to gain leverage in a divorce. But that can be helpful. Attorneys need to find creative ways to argue that animals should be considered as something beyond property – by deploying emotional value and best interests of the pet standards.

Whether the parties are using informal means or litigious means, it is critical to establish legal ownership of the pet and/or status as the primary caregiver. Some ways to do that include:

  • Through official records such as the pet purchase agreement or adoption contract.
  • With receipts that establish one as the primary caregiver, such as for veterinary care, county-required licenses, grooming, training classes, food, and other items purchased for the animal.
  • Using eyewitnesses, neighbors, for example, can confirm consistent care such as dog walking and backyard playtime.

Take note of tricky circumstances that could complicate the determination of legal ownership:

  • If the spouse who purchased the family pet before marriage then registers the pet under both spouses’ names, the other spouse can argue that the registration was a written transmutation of separate property into community property.
  • Rescue organizations often remain on microchip identification records and could muddy ownership footprints.

When it comes to arguing for emotional value considerations, let Judge Judy illustrate my point: this clip from 2012 shows the judge letting a dog loose in her courtroom to identify it’s true owner.

A more recent example of the human-pet bond can be punctuated through changes in how pet rescue organizations operate during times of natural disaster.

“Of the many things … learned [from Katrina], number one is people don’t want to leave their pets. And if they do, it’s highly traumatic for the people and the pets. And they want them back,” says Colleen Learch, an advisor for the Lost Dog and Cat Rescue Foundation in Virginia, which is taking in animals from the recent hurricanes.”
(The Rescue Networks That Save Cats and Dogs From Hurricanes, Sept 27, 2017)

A family court may consider the emotional connection between a pet and each spouse when issuing orders. The welfare or best interests of the pet may also be at play. If the animal will be unsafe in a particular spouse’s home – because of other animals or lack of fencing, for example – a strict property analysis simply won’t suffice. In fact, California Family Code Section 6320 protects domestic animals if there is a reason to believe one of the parties may cause harm to the pet.

Pets and Domestic Violence. The intersection of pet custody, divorce, and domestic violence creates an added layer of emotion and danger to these types of situations.

Consider the international custody battle over Los Angeles dog Crumpet, a Brussels Griffon. Her ultimate owner resorted to a claim of assault, battery, domestic violence, intentional infliction of emotional distress and stalking when her ex-spouse snatched the pup from her arms. The case settled.

According to Sacramento-based animal welfare organization RedRover, the “National Coalition Against Domestic Violence shows more than 70 percent of pet-owning women entering domestic violence shelters reported that their batterer had injured, killed or threatened family pets for revenge or psychological control. Up to 48% percent of domestic violence victims are unable to escape their abusers because they fear what will happen to their pets when they leave.”

In 2007, California passed litigation to protect animals in domestic violence situations. If there is domestic abuse, pets may be included in domestic violence restraining orders and law enforcement may be required to remove animals for domestic violence situations.

But legal protections can fall short or seem unreachable. See the story of Shari, who needed to escape domestic violence, but couldn’t bear to leave her dogs behind. Thanks to RedRover, in collaboration with WEAVE, Shari was able to find safety for herself and her dogs, so they could build a new life, together.

Judicial views of pet custody disputes in California are far from uniform, though I certainly hope that the emerging trends nationally find their way here. Many pet parents view their companion animals as much more than mere property to be divided when divorcing. Providing parameters for the animals’ futures would impose some needed structure to what I believe is an undeveloped area of California family law.

ABOUT THE AUTHOR: Neil M. E. Forester is Shareholder of FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. He is recognized by the State Bar of California’s Board of Legal Specialization as a Certified Family Law Specialist. Neil regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Beyond his legal practice, Neil serves as Board Chair for WEAVE and NorCal Boxer Rescue. He can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
SPLIT | DECISIONS is Your Divorce Lifestyle Network: Along with local and national guests, hosts talk about divorce as it really is — not just a lawsuit, but a lifestyle. The resource aims to help individuals make better Split Decisions. The law is constantly changing. The information contained herein may not reflect the most recent legal developments and may not be accurate or applicable in your jurisdiction. You should not take, or refrain from taking, action on the basis of information included in this video/article without seeking the legal advice of competent counsel in the relevant jurisdiction for your particular problem. Learn more at http://www.splitdecisions.pro
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