April 19, 2018

Pet Custody: Who Keeps the Pet When Couples Divorce?

Marie Sarantakis

Marie Sarantakis is the founding attorney of Sarantakis Law Group, Ltd., located in Western Springs, Illinois. She is co-chair of the American Bar Association’s GPSolo Family Law Committee and the Young Lawyers Division Family Law Committee. To learn more about Ms. Sarantakis, visit sarantakislaw.com.

 

 

 


Approximately seven out of ten U.S. households own a pet. It has become increasingly common for pet parents to share a meal, trip, and even a bed with their furry children. While pets are being treated more like kids and less like a tangible good, family law statutes throughout the United States fail to treat a dog or a cat any different than a lamp when it comes to divorce. Courts have remained detached from hearing, ruling on, or enforcing pet custody and/or visitation arrangements. The household pet is simply another asset to be allocated.

Legally speaking, pets in a divorce proceeding have been callously deemed to be personal property, rather than something sentient. The seminal Florida First District case of Bennett v. Bennett, 655 So.2d 109, 110 (Fla. 1st DCA 1995), summed up pet parents’ rights as follows: “[w]hile a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property. . . . There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property.” Furthermore, the court goes on to say, “Determinations as to custody and visitation lead to continuing enforcement and supervision problems. Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.” The tenor in Bennett has in essence been uniformly adopted as the approach toward pets throughout the United States. However, Alaska is now chartering a new frontier.

Alaska may have been one of the last states to join the union, but it is the first to treat pets like family in the eyes of the law. On January 17, 2017, Alaska became the first state to enact pet custody legislation. While this is a quantum leap in and of itself, Alaska took things one step further by instructing the courts that pet custody disputes are to be decided based on what is in the best interests of the animal, rather than the interests of the parties to the divorce. Courts in years past were hesitant to become entangled in the fray of pet custody and visitation, but now Alaska has codified the court’s review of an animal’s welfare in family disputes. The Animal Legal Defense Fund has commended Alaska’s approach as being “groundbreaking”.

On January 1, 2018, Illinois recognized pet custody, and now Wisconsin legislators are discussing the prospect of enacting a similar law. The legal climate regarding how pets fit into the divorce schema is changing. Practitioners across the nation wait to see if Alaska’s approach will have a significant influence on divorce laws affecting pets throughout the nation.

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Marie Sarantakis