by Mary Ellen Flynn, Attorney
While most people are familiar with custody agreements for children, you may be surprised to learn that a similar custody arrangement can also exist for the furry members of the family: your pets.
A “Pet Custody Agreement” is a contract that outlines the custody and care of a pet when its owners are no longer living together. This scenario might arise between spouses who are divorcing, partners who are separating, or roommates who are parting ways. When such a marriage or partnership dissolves, a Pet Custody Agreement will dictate the Who, When, and How for the pet’s care moving forward.
What does a Pet Custody Agreement include?
The Agreement will first identify every person and animal involved. This includes the names, addresses, and contact information of each of the parties (the people claiming ownership or visitation rights) and information to identify the pet(s) (i.e., the pet’s name, the type of animal/breed).
The Agreement will establish the custody of the pet – if the pet will belong to one person alone or if there will be some form of shared custody. If the parties share joint custody, the Agreement will include a visitation schedule to answer: When can each party visit with the pet? Where will visits take place? Will the pet live with one person or go back and forth? Who is responsible for transporting the pet for visits?
Often times, the party with sole or primary custody of a pet will also be responsible for (1) financial costs for the care of the pet, for everything from vet bills to grooming to dog walkers, and (2) medical oversight, i.e., who makes the medical decisions for the pet. The Agreement will either say which party will take on these responsibilities or how both parties will share them.
Finally, the Agreement can address any other matters required for the particular pet or as the parties see fit. One additional option is to include a limit on the transfer of ownership. If the primary owner no longer wants the pet, this gives the other party the option of assuming ownership before anyone else.
When should I get a Pet Custody Agreement?
The ideal time to solidify the Agreement’s terms is before they are needed and when the parties are more likely to be amicable and cooperative in deciding them. If you and your roommate or partner own a pet together, but you think that may change in the future, the sooner, the better. If you and your partner are preparing a prenuptial agreement, then it should include the terms of a Pet Custody Agreement.
Of course, splitting ownership of a beloved pet is not something co-owners may want to plan for or expect to happen. Understandably, the issue often never comes up until the split or during a divorce. If that happens, you can try to work out the Agreement in mediation or arbitration. If that is unsuccessful, then the court can decide the ownership terms.
How is the custody of a pet decided?
It is essential to know the law’s considerations for determining pet custody. Knowing them can help you negotiate the Pet Custody Agreement and prepare you if those negotiations are unsuccessful.
The first and foremost consideration is the legal ownership of the pet. In most states, including Maryland, a pet is considered personal property and belongs to the person who purchased or adopted the animal. A party can prove this ownership with receipts and other records showing how the pet was acquired and licensed. In a divorce case, if one person owned the pet before marriage, then the pet is that person’s separate property. But if the parties acquired the pet during the marriage, the pet is likely marital property, and the court will consider other factors. These other factors may even outweigh a separate property claim, as courts recognize more and more that pets mean much more to people than simply ‘property.’
If the pet is marital property or otherwise owned by two people, the court may consider:
- Who Typically Cared for the Pet: The court considers who historically took the responsibility of feeding, walking, and veterinary visits.
- Emotional Bond with the Pet: As shown by photographs, witness testimony, or other records, who has a stronger attachment with the pet? Who does the pet spend more time with or follow around the house?
- Each Party’s Living and Financial Situation: Since pet custody tends to come up when people are separating or moving, each party needs to show how they will still be able to care for the pet. The court may ask: Can you financially afford the costs? Does your apartment allow pets? Do you have a fenced-in yard or enough space inside?
- Children’s Attachment to the Pet: If there are children attached to the pet and are primarily living with one person, the custody of the pet may also go to that person to benefit the children and give them some stability.
- Finally, a person’s history of animal cruelty, abuse, or neglect will weigh heavily against their claim to keep the pet.
Start the Process Today
With the help of a lawyer, you can receive legal advice as to whether you need a Pet Custody Agreement and what terms to include. A lawyer can help you gather the evidence you need, advocate for you in negotiations, and represent your case to the court if necessary.
At Andalman & Flynn, we can help ensure the care of your most loved furry family members. Please get in touch with our law firm to schedule a consultation and learn more about the best way to do just that.
Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The Firm practices family law, estate planning, and probate throughout Maryland and the District of Columbia, and represents individuals seeking disability benefits throughout the country. The Firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The Firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.