By Mary Ellen Flynn, Esq., 301.563.6685
Pets are rightfully considered family members, but what happens when parents, or “pet parents,” decide to separate or divorce?
Although some pet owners treat their pets, particularly dogs, as their “children,” pets are not treated the same as children in custody matters. However, pet custody issues have become more prevalent in contested divorces, and courts in some state may consider the “best interest of the pet” if both parties adopted the pet. Normally, pets are treated as personal property, the same as a couple’s wedding china, furniture, or a family heirloom. Therefore, courts will look at specific facts in each case to determine who should have ownership of a family pet. However, some states, notably California, have re-shaped their analysis regarding pets and treating them more like family members than property. For example, California adopted a law that allows judges to consider what is in the animal’s best interests rather than treating a pet like inanimate property. Although Maryland and the District of Columbia has not yet adopted the best interests of the animal standards; the rise of pet custody issues may entice lawmakers to enact such legislation.
Below are some guidelines and questions to consider when you and your spouse are contemplating pet custody.
First, consider, was the pet adopted during the marriage?
Adoption prior to or during the marriage is the first question to be considered because if one spouse adopted the pet before the marriage, then the Court will likely heavily lean toward the adopting spouse taking ownership of the pet.
However, this isn’t always a fine line because many couples adopt pets together before they get married. If this is the case, then the Court may consider additional factors as explained below.
Other Facts to consider
1. Which spouse will be in a home (new or current) with a fenced-in yard or other accessible green space? Parties should consider this question, and a court may also consider it. Although there are no codified “best interests” standards for dogs or other pets, a dog who enjoys running and playing would clearly benefit from having an accessible yard or dog park. This inquiry also applies to cats and whether they are primarily indoor, outdoor, or both.
2. Who primarily takes care of the pet? Spouses should consider who regularly takes the pet to the vet for check-ups, takes the pet on walks, cleans up after the pet, grooms the pet, or even consider who gives the pet the most attention or affection. A court may also consider this factor.
3. Does one spouse telework while the other works in an office? If only one spouse teleworks or has a more flexible work schedule than the other spouse, it may be best that the pet stays with that spouse at least during the day, and then the pet could go to the other spouse’s home some evenings.
4. If you have children, is the pet particularly attached to them? If so, maybe consider transporting the pet along with the children when they go from one parent’s house to another parent’s house.
5. Is keeping the pet after divorce too emotional for both parties? Or will the expense will be too much after separation? If so, the parties should do their absolute best to work together and find a suitable home for the pet.
What to include in your pet custody agreement
If you and your spouse can agree to joint custody of your pet, consider adding the following provisions in a pet custody agreement (or incorporated into a marital settlement agreement):
1. Decision-making: Will decisions regarding the animal’s discipline, training, breeding, and end-of-life decisions be made solely by one spouse or jointly? If jointly, are you and your spouse capable of making these decisions together? The pet custody or marital settlement agreement should address all of these issues.
2. Visitation: Clearly state a visitation plan for the pet, including where exchanges will occur, who will transport the pet, and whether the parties will feed the pet the same type of food.
3. Expenses: Veterinary costs, depending on your pet’s health, can get expensive, so decisions regarding how parties will share costs are extremely important to include in any pet custody agreement. In addition to veterinary expenses, the agreement could address costs such as food, boarding, or dog walking. Additionally, your pet will incur normal vet check-up costs but may experience emergency costs as well. Due to the heightened emotions and expenses involved in an emergency situation, parties must work out this potential issue ahead of time.
If you and your spouse both have a strong bond with your beloved pet, consult with your family law attorney to see how an amicable pet custody agreement can be incorporated or included in a marital settlement agreement.
If you believe that your pet should be your sole care, consult with an attorney regarding your rights to sole ownership.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. 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