Divorce & Pets: Who gets the pet?

Our pets are increasingly a part of our family. A pet provides unconditional love, especially when we are working from home and trying to stay safe during the pandemic. But what happens to a pet when the relationship between the humans is over? In a divorce, custody over pets can become as contentious as custody over children.  However, when parties who are not married separate, the Court simply views the pet as property as there is no pet custody law in place for unmarried couples. Some judges will mainly consider who purchased the pet or whose name is on the adoption papers. Other judges may also entertain evidence as to who primarily takes care of the pet.

On January 1, 2019, California enacted Family Code 2605 to address how custody of pets is handled when parties separate. The Court “may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.” The Court defines a pet animal as any animal – furry, feathered or scaly – that is kept as a household pet and is considered community property. Please reference our “Separate Property v. Community Property in California Divorce” blog for an explanation regarding the definition of community property. The Court also looks at the care of the pet animal, which includes, but is not limited to the following factors:

1. Prevention of acts of harm or cruelty;
2. Providing food and water;
3. Taking your pet to the vet; and
4. Providing your pet with a safe and protected shelter.

Prior to 2019, the Court could only view pets as property, similar to dividing a car or jewelry. The Court would usually award the pet to the party who obtained the pet and have the other party pay reimbursements. Now, the Court must consider your pet’s well-being, which includes a consideration of who raises and takes care of the pet similar to which parent is the primary caretaker of a child. The court can enter a temporary order for a particular party or spouse to care for the pet, but this order can change, just like an order for child custody. It is unclear though for how long the family court can retain jurisdiction over modifying custody orders for a pet. The temporary orders for custody of the pet during the divorce proceeding does not have necessarily impact on the Court’s final determination for who gets custody of the pet.

Hart Ginney LLP welcomes pets of all shapes and sizes. All of our attorneys have pets of their own!

If you are concerned that your furry, scaly, or feathered family member will be affected by your divorce or legal separation, we are happy to discuss any concerns you may have, and the habits of our own pets.