The role of pets has drastically evolved from generation to generation to the point where most pets are now considered a member of the family. Most millennials even refer to their pets as their “fur babies.” TD Ameritrade conducted a survey of millennials last year that shows most consider their pet to be a “fur baby” and would consider participating in an employer-sponsored pet health plan. See, TD Ameritrade: Millennials and Their Fur Babies.
Courts, unfortunately, have failed to keep pace with the societal changes in the role of pets. Only three states have laws that permit court to consider the argument for custody for pets. The other forty-seven states treat pets as property, meaning the courts can only award a pet to one owner or the other. The party who purchased the pet or pays for most of the pet’s care will likely be awarded ownership.
The three states that permit courts to treat pets like children in a divorce are Alaska, Illinois, and, now, California. Courts in those states may consider the “best interests” of the pet in awarding custody. In addition to an award of primary or joint custody, there can also be an award of visitation and support payments. Until more states follow Alaska, Illinois, and California, parties seeking a divorce will have to rely on creative arguments and open-minded judges to lay the groundwork for future case law for awarding custody of a pet.
Although only three states allow a court to consider custody of a pet, it does not bar the parties in a divorce from agreeing to a custody arrangement. Such an agreement may or may not be incorporated into the decree of divorce, depending on the jurisdiction. This is the only option for divorcing parties when the court is without authority to award custody of the pet.
Typically, property division is done equitably, and custody is designed to protect the best interests of the children. But with more married couples waiting to have children, or not having children at all, parties will likely want the court to look at their pet as more than property. As pets continue to evolve into their roles as members of the family, courts will need to reconsider their role in awarding a pet to one party or another. Questions? Contact our Sioux Falls, Sioux City, or Omaha office today.