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February 27, 2023 Feature

Pet Custody Disputes: What Happens to Fido or Fluffy When Their Humans’ Relationship Goes South?

By Joan M. Bundy
To determine the legal owner in a pet-custody dispute, civil courts will look to a balancing principle called indicia of ownership.

To determine the legal owner in a pet-custody dispute, civil courts will look to a balancing principle called indicia of ownership.

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Have you ever considered what might happen to your cherished pet or pets—be they canine, feline, avian, reptilian, aquatic, or otherwise in nature—should your living situation suddenly be disrupted by a romantic-partner breakup, roommate moveout, divorce, or even death?

We would all 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 (hello, COVID-19!). 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 will draft), 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 like 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, non-human 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 (like wildlife in the public domain).

Laws on animal ownership are a crazy checkerboard of HOA 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 puppy 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 it pings as having had the same owner for a decade? Further, suppose that the listed owner hasn’t bothered to keep their contact information current. Furthermore, a quick check of animal control and court records indicates they have 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:

  1. Found, adopted, or bought pet (e.g., when and how did it come into their possession?)
  2. Got pet microchipped, kept records up-to-date
  3. Got pet spayed or neutered
  4. Scheduled, took pet to vet as needed
  5. Ensured pet was current on all required vaccinations (such as rabies) and registered and renewed local government license
  6. Fed, watered, gave meds, cleaned up after pet
  7. Let pet sleep on humans’ beds or, contra, kick them off bed or even outside
  8. Groomed or took pet to necessary/desired grooming appointments
  9. Walked dog or scheduled and took pet to obedience training, agility or show training and competitions, doggie daycare, dog park, playdates, or other exercise, socialization, and enrichment opportunities
  10. Paid for pet’s purchase or adoption, food, treats, bowls, leashes, harnesses, bedding, doghouse, toys, veterinary and other services, licensing fees, etc.
  11. Bought and installed appropriate pet safety restraints in car
  12. Arranged for professional portraits, made TikTok videos or frequent posts on social media like Facebook, Instagram, etc., about pet

Sure, individual animals are known to have a favorite “person,” but to wit, that is not yet a relevant factor. It’s not like on TV where a judge has a handler bring a dog into the courtroom and then drop the leash while everyone waits with bated breath to see which party the dog goes to first or how they interact 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 (not always the best indicator of pet caregiving, unfortunately).

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—from thousands of pieces of paper in dozens of archive boxes in her offsite storage unit—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). In Arizona, where I practice, thankfully now mentions pets in their 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—not the death of the animal, but the death of the human—is a situation that comes up way more often than people want to admit. We generally outlive common household pets like 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.

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By Joan M. Bundy

Joan Bundy has been a solo family-law private practitioner since 2009, focusing primarily on LGBTQIA+, pet-custody issues, and mediation. She has been a member of the State Bar of Arizona’s Animal Law Section since law school and was chairperson of the Student Animal Legal Defense Fund chapter at the University of Arizona James E. Rogers College of Law from 2002 to 2005. She has been a member of TIPS’ Animal Law Committee and its Subcommittee on Policy and Alliances since 2016.