It's A Dog's Life

The Battle Over "Fido" Becomes More Common

It was the mid 1980’s.  I had recently begun a new job at a small firm that handled a lot of divorce cases when my employer approached me about arguing a motion involving custody and visitation for a five year old named Max.  Thrilled to be given such an important responsibility so early in my career with that firm, I jumped at the chance.

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Then I looked at the case file.  Max was not a five year old boy; Max was a five year old beagle, whose owners were divorcing and were at odds regarding where Max should live post-divorce.

As far-fetched as it may seem, “custody” of the family pet is becoming an increasingly common issue in divorce cases.   In recent years, pets have achieved a status within the family unit that was previously unheard of.  While a generation ago, families may have formed “attachments” to their pets, today, it is not uncommon for pets to be considered actual “members” of the family, much the way children are – especially in families where the couple is either childless, or has children who are grown and have moved away.

Unfortunately, in the eyes of the law in most states, the family pet has not yet reached such revered status, and is still considered nothing more than another piece of property, subject to division in the divorce in much the same way as a piece of furniture; and this is not likely to change any time in the immediate future.  Although some Judges may (and in the past have) allowed testimony on the issue of custody and visitation with the family pet, for now, such cases are the exception rather than the norm.

With Probate Courts being faced with declining budgets and burgeoning dockets, most judges are understandably reluctant to entertain issues of pet custody and visitation,  choosing instead to focus their time, attention and resources on their human litigants.
However, surveys reflect that approximately 40% of American households have a pet of one kind or another.  Statistics also show that approximately 50% of marriages in this country end up in divorce.  Consequently, there is the potential for pet custody and visitation to become an issue for approximately 20% of American families many of whom could be looking to the Courts for guidance in an area where there are no established protocols.

How, then, do you insure that man (or woman’s) best friend is properly cared for in the event of divorce?  

The easiest way would be for the divorcing parties to simply reach an agreement on the issue.  Of course, sometimes agreeing on any issue is difficult for a divorcing couple. In that case the parties could elect to mediate the issue.   Another alternative, as suggested by one California attorney, is to execute either a Prenuptial (if the pet was acquired by one of the parties prior to the marriage) or Post-nuptial (if the pet was acquired by both of the parties during the marriage).

Agreement, setting forth precisely what is to become of the family pet in the event of divorce – however, this solution would require advance planning and forethought.  Finally, you could present the issue to the Court for resolution and hope that you have a more progressive thinking Judge who would be willing to hear “evidence” on this issue akin to what would be heard in a child custody case; (i.e., who was the primary caretaker of the pet – who played with it, exercised it, groomed it and fed it; who took the pet to its veterinary appointments;  who is better able to continue to care for the pet in terms of time and accommodations)--- then hope for the best.

All of our attorneys at South Shore Law's Family Law division offer the experience and insight you may need in the event you may face a divorce and there are sentimental and unresolved issues like who will get custody of the family pet.   South Shore Law's MediationPLUS division can offer a stress free alternative to traditional divorce proceedings and can sometimes can be a more cost effective alternative.

As for my beagle friend, Max, after the Judge read my motion, he looked at me over the top of his glasses, raised his eyebrows, and with a smile of disbelief, suggested that opposing counsel and I go out in the hallway and come to an agreement on the issue – which we did.    Max continued to live with his “mom”, but went out with his “dad” three nights a week, for a burger, ice cream, ride in the pick-up and walk on the beach, proving that, at least as far as Max was concerned, it really is a dog’s life.

Do you know someone who could benefit from this information?  Pass it along and tell them about South Shore Law.   Our experienced attorneys are committed to successfully solving any current legal challenges while insulating you from potential future threats to you or a business.  Everyday, our lawyers who live right here on the South Shore, strive to deliver exceptional legal representation to our neighbors and friends at affordable rates
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