Couple splits: who gets custody of the dog?

A long, long time ago, I had a client who purchased a puppy for his significant other. Life was fine until his partner was discovered to have another love interest. The insult added to the injury? The cheating party used the nightly walks of the dog as cover to meet with the new love. When the inevitable split occurred, both parties wanted to keep the dog, an AKC registered cocker spaniel. More recently, I’ve had more questions about how to deal with pet custody, especially cat and dog owners.

Legally, the family pet is normally considered personal property and this issue sometimes comes up in divorce cases when the couple can’t agree on how or if they share the pet. Sometimes, the pet, like in the case above, is used as a tool to deprive the other party of the companionship of the pet for spite. Add children to the mix and the issue of who gets the pet can be a very emotional decision.

Most people do not think of their furry family members as just property. The family pet is usually an integral part of the family dynamic. What happens when the couple is not married and there is no divorce proceedings to decide these issues? How can you make the best decision as to how to share the pet?

If a pet is treated more like child than property, then considering the best interest of the pet is one way to make the decision. Say one owner is home with the dog most of the day and the other owner works 13 hours a day. The dog is more attached to the stay-at- home owner. Is splitting custody when the dog will be alone for long period time during the day in the best interests of the dog? Probably not. But some breeds bond with one owner more than another, regardless of the amount of time spent with both. In that case, how would you determine the best interest of the dog?

In the case mentioned at the beginning of the article, an elaborate custody agreement was drawn up that divided the custody and financial responsibility between the couple. The dog ultimately ended up with the owner that loved him the most despite the initial protests that both owners had the same attachment to the dog. But what about a pet that is owned before the relationship begins? Is the non-legal owner even considered in determining who gets the dog or cat when the couple splits? Does it matter if the owner is the registered owner of the pet? What about a pet custody agreement? Mediation with a neutral party? Court battle?

None of these questions are easy to answer. As a litigation attorney, it might surprise you that I don’t advocate litigation as the best solution for this issue. I think the preferred way to work through this issue is to come to an agreement before the split, like a pre-nuptial agreement. If that is not possible, then mediate the issue with a neutral party. And always consider the best interest of the pet. If that doesn’t work, offer to split the pet in half. The person who refuses to agree is the one who loves the pet the most. (I didn’t just think of that. It’s King Solomon’s solution. It worked in the Bible and on Seinfeld.)