How to Determine Custody of Pets in a Divorce

One of a Judge’s least favorite cases is that of the custody of an animal.  People become very attached to their dogs, cats and horses, but an animal is not a child in the eyes of the law.  The standard for the Court to determine the custody of a child is to decide what is in the best interests and welfare of a child or in some cases for the Court to determine whether a parent is fit to care for a child.  The Court views an animal as personal property, and does not make its decision based on the same criteria that it would use in deciding the custody of a child.  The allocation of personal property is made by looking at the value of that property, what the value is of the other property is to be distributed and the Court then makes a distribution based on what is fair or equitable in the circumstances.

An apt example of an animal as personal property is that of a race horse as opposed to the family dog which may not have much monetary value, but might have emotional value to both of or one of the litigants.  A race horse has monetary value in that it may be worth some specific amount of money and the horse may generate income in addition.  Therefore, the Court would look at the value of the race horse much in the same way as it might look at the value of rental real estate.  In this regard, the Court would be interested to know what the horse cost, what is its current value, and what is the revenue stream that can the horse be expected to generate.  In addition, the Judge may want to know who cared for the horse, who selected it and what the historical arrangements for the horse has been when the couple was together. Experts may be called by one or both parties to persuade the court in its determination and those experts would testify as to value, and the future monetary gain to the owner. On the other hand, an expert in a child custody case would testify as to what is in the best interests of the child.

As for the family pet, the Court might consider if there are children, what the attachment is for the children.  However, to put this issue to a judge to decide is tricky as judges have so many issues to determine and hear, that they are typically extremely reticent to make a decision about the family pet.  If such an issue is to be decided, it is best for the litigants themselves to arrive at a solution with the assistance of their attorneys or that of a mediator.  The last place to bring this issue for determination is the Courts.