Blog Post

Blog Post  Pet Custody

When two people, either married or unmarried, break up, who gets to keep the pet(s)?
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Can the court order joint custody of the dog or cat, as it would a child?  Can one party get visitation rights?  Is a pet treated in a legal sense in the same way as a child, or simply as property?

The short answer is that, in the Massachusetts courts, as in the rest of the country, pets are considered property under the law, and are treated as such during a divorce or a split between unmarried people. Although animals are treated as sentient beings under laws designed to protect them against animal cruelty, and can even be the beneficiaries of trusts set up to maintain them, there is no Massachusetts law that defines pets as anything other than property, and in divorce proceedings they have no more legal identity than a lamp or a table. Ownership will simply be granted to one or the other of the parties.

Having said that, many legal scholars argue for a different standard for pets than for other property, treating pets much like children in a divorce.  Some argue for a “best interest of the animal” standard, just as the law on child custody considers what is in the “best interest of the child”.

Our “Law about Animals” webpage has laws and cases related to animal law in Massachusetts, as well as a reference to an article concerning pets and divorce, from Massachusetts Family Law Journal v.30. no.3 (2012), p. 29-39:

Woof, woof, we’re getting a divorce”: pet custody and the law.  The article concludes, after reviewing various cases (none of them from Massachusetts), that a judge may be inclined to grant custody (i.e., ownership) based on what is in the best interest of the animal (as if it were a child), or could choose by a more crass property law criterion as simple as who wrote the check for each animal.   A court may uphold a visitation agreement made between two parties, but not create a visitation order of its own. In at least one case where this was tried, the continued squabbling between the humans led to an appeals court ending visitation.

Another recent article is Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law.  [International Journal of Law Policy and the Family v. 28, no. 2 (2014), p. 177ff.]   This article addresses the issue of courts trying to find a balance between property rights and finding what is best for the pet, as well as considering peoples’ emotional bonds with their animals. It advocates treating pets as a special kind of sentient property in tort and custody cases.

The book Every Dog’s Legal Guide (Nolo, 2012) has a chapter about divorce and dogs.  (You can borrow this book from the law libraries. The book strongly suggests mediation outside of court, if that is at all possible.

“…legally, pets are still property. And overburdened courts are unlikely to take on the challenge of supervising how divorcing couples deal with their pets…. [D]on’t for a minute think that court is a good place to resolve your disagreements about who gets the dog….[C]ourts do not treat custody battles over pets like they do child custody cases; they will not consider the “best interests of the pet.” Instead, they almost always simply award ownership of an animal to one spouse or the other, usually with minimal discussion.”

Portrait of a dog

The book discusses what factors you should consider during mediation, as well as the factors that the court might consider in its ruling, if it is brought to court.  These considerations are listed:

  • “If one person owned the dog before the marriage, that person will probably keep ownership of the animal.
  • If one spouse received the dog as a gift, he or she will probably be able to keep it.
  • If it’s obvious that one spouse won’t be able to keep the dog—for example, doesn’t have a stable address, is living in a no-pets building, or is about to be deployed in the military—the dog will probably be given to the other.
  • Sentimental value. If there isn’t such a straightforward way to resolve the dispute, some courts will take into account a dog’s ‘sentimental value.’ The dog is still an item of property, but the court recognizes that it’s a special kind of property, like a one-of-a-kind heirloom, whose primary value is emotional.
  • Mistreatment of the animal. If there is evidence that one person abused or neglected the dog, the other will probably be awarded ownership.”

The book also discusses some court cases that have delved into the delicate realm of trying to award “custody” of animals as if they were children.

 Written By: Gary Smith

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