Pet Custody Disputes: Who Gets Fido or Fluffy?

We all would like to think that our beloved companion animal(s) will stay by our side throughout their/our natural lives. Unfortunately, that is not always the case.

Pets increasingly matter to people, especially as we become less connected to extended family, hometowns, and communities. With almost as many women as men in the workforce nowadays and singles of all genders getting married later in life (or not at all), child-rearing is often foregone or put on hold until the family unit is more established and financially solid. Couples often will “try out” parenting with a pet or two. On the other end of the spectrum, people live longer, and pets can mean the world to empty nesters and retirees.

But what happens when the stability of the household breaks down? If the parties, while still in a blissful relationship or at least on civil speaking terms, didn’t think to execute a joint pet-custody agreement or mutual honorary pet trusts (yes, these are both very real things, which I highly recommend and draft in my practice), judges have to decide ownership.

In reality, black robe wearers typically are not going to spend time crafting joint-custody terms for a pet or even award it to more than one person absent an already existing, enforceable agreement. They probably won’t dive deep into things such as pets’ scientific bonds to each other or keeping pets with the kids when they go back and forth between co-parents’ households. They may give half the pets to one party and half to the other, or all dogs to one and all cats to the other, but that’s about it.

Yes, it may seem cold-heartedly arbitrary at times. Still, nonhuman animals are legally considered personal property akin to a toaster. Although a proposed hybrid “living property” category is getting increasing traction, which I vigorously applaud, domesticated animals ranging from the largest bull-cow livestock to the tiniest “pocket pet” hamsters are deemed to be owned (or potentially owned) by one specific person or entity, with very few exceptions (such as wildlife in the public domain).

Laws on animal ownership are a crazy checkerboard of homeowners association and administrative agency rules and regulations; city, county, state, and national statutes; and case law. They can be terribly contradictory and vary significantly in breadth and depth. For example, a municipality’s codified animal ownership definition might simply state, “harboring an animal for three days or more.” But what exactly does that mean?

Say a Good Samaritan finds a tagless dog on a public street, carries it home, gives it food, water, and shelter for three days, then takes it to a vet, where it is scanned for any microchips, and the microchip pings as having had the same owner for a decade? Further, suppose that the listed owner hasn’t bothered to keep his or her contact information current. Furthermore, a quick check of animal control and court records indicates that the listed owner had numerous citations and convictions for animal-status offenses, neglect, and even cruelty to animals. Now it’s no longer clear-cut, and we’re talking about moral and legal concerns.

Increasingly, to determine the legal owner in a pet-custody dispute, civil courts will look to a balancing principle called indicia of ownership—various factors taken as a whole may point to one party having a superior ownership claim (or not). They include but are not limited to which party (if any) solely or primarily found, adopted, or bought the pet; had the pet microchipped and kept records up-to-date; had the pet spayed or neutered; scheduled and took the pet to the vet as needed; ensured the pet was current on all required vaccinations and registered and renewed local government license; fed, watered, gave meds to, and cleaned up after the pet; let the pet sleep on the humans’ bed or, contra, kicked the pet off the bed or even outside; groomed or took the pet to necessary/desired grooming appointments; walked the dog or scheduled and took the pet to obedience training, agility or show training and competitions, the dog park, playdates, or other exercise, socialization, and enrichment opportunities; paid for the pet’s purchase or adoption, food, treats, bowls, leashes, veterinary services, licensing fees, etc.; and bought and installed appropriate pet safety restraints in cars.

Sure, individual animals are known to have a favorite “person,” but that is not yet a relevant factor. It’s not like on television, where a judge has a handler bring a dog into the courtroom and then drop the leash while everyone waits to see which party the dog goes to first or how the dog interacts with each person. A decision often comes down to something as mundane as who has the best paper trail, which is often also the party who paid for most things.

I had a client who was by far the superior caregiver of a mutual pet but lost custody to her ex-boyfriend when his attorney produced in court a document he called “adoption paperwork,” claiming it was the contract with the rescue group from which the animal was obtained. It made it look like he was the only adopter when the duo actually adopted the pet together and paid the adoption fee in equal amounts. My client could not unearth in time the final, complete copy of the same document that showed both their names and signatures on it. Worse, the rescue group no longer existed and couldn’t be reached.

Another option is obtaining a civil protective order that includes the pet(s). Arizona, where I practice, thankfully now mentions pets in application guidelines and will include them on orders—but this is only a temporary Band-Aid, as is replevin (temporary possession good for only the pendency of a pet-custody dispute case).

The aforementioned honorary pet trust has proven to be quite helpful and much more long-lasting in pet-custody disputes. Losing an animal due to death of the human is a situation that comes up way more often than people want to admit. We generally outlive common household pets such as dogs, cats, and fish. But, for instance, certain tropical birds, particularly macaw and African grey parrots, can live a century or more! If you have a pet like this, please consider obtaining an honorary pet trust to designate who cares for your beloved pet in case of your unavailability, incapacity, or death.

ABA TORT TRIAL & INSURANCE PRACTICE SECTION

This article is an abridged and edited version of one that originally appeared on page 8 of TortSource, Winter 2023 (25:2).

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