Getting Custody of Fluffy, Fido

pet custody battle, photostock via freedigitalphotosdotnet

In the pending Antonio Banderas/Melanie Griffith divorce, the division of their assets with a combined net worth of $50 million apparently is not an issue. The couple’s three dogs are. Who gets custody of the terrier mix and two shepherd-lab mixes that they rescued in February appears to be the most contentious part of the divorce. They are hardly alone.

Increasingly, divorcing couples are fighting over who gets the family pet. A recent survey by the American Academy of Matrimonial Lawyers of its 1,600 members showed a 27 percent increase in custody fights for the family pet. Dogs represented almost 90 percent of the disputes while cats are five percent.

In my practice as a family law attorney, I’ve seen numerous battles over pet custody and visitation rights. The disputes are usually resolved in one of two ways: through lawyer-assisted mediation where the couple determines who will have custody, or in court, where the judge decides who will have primary custody and what visitation rights to allow.

When deciding on a case, judges consider several factors but usually make the decision based on who spent the most time taking care of the pet and the quality of that care. If children are involved, a judge often awards custody to the parent who has custody of the children. Home and work situations are also taken into account.

It should be noted that not all pet custody cases are the result of a divorce. Anyone who shares the care of an animal with another person may find themselves in a fight for pet custody if the relationship or living arrangement changes.

A more satisfactory solution than squabbling is to decide in advance who will have custody and visitation rights by creating a pet custody agreement or a clause in a prenuptial or post-nuptial agreement.

While we all believe in ‘happily ever after,’ it is wise to have a fall-back plan, even for Fido and Fluffy, should their owners’ relationship end. The treatment of pets in a court of law has historically been to categorize them as ‘property’ and not as ‘family members.’ That means court decisions about cats, dogs, birds and other beloved household animals often are not as predictable or sentimental as pet lovers would like. A document containing the preferences and agreements of the owners as to pet ‘custody’ could help impact their decision.

That said, there is no guarantee that the courts will find pet agreements binding because they are a relatively new concept. It’s likely, however, that the written words of caring owners will carry legal weight and help assure Fido or Fluffy an amicable ending, even if or when their ‘people’ decide to go their separate ways.

Photo courtesy of photostock via freedigitalphotos.net

Gemma_Allen

About Gemma Allen

Gemma Allen is a partner in Ladden & Allen, Chartered, and has practiced family law for most of her career. Ms. Allen has written more than 50 articles and lectured on topics that include divorce, child support, maintenance, mediation, cohabitation, women and money, and reconciliation. She co-authored The New Love Deal: Everything You Must Know Before Marrying, Moving In, or Moving On! and helps you navigate modern relationships in “Relationship Gems.”