Published
21.Feb.2008

Breaking Up: Who Gets Custody of the Pet?

Given the love and attention you and your significant other shower on your pet, it may be inconceivable that either of you would ever do anything not in Fido's best interest. The idea of your beloved pet used as a bargaining chip in a separation or divorce is laughable... until it happens.

Linda Hardie knows. When she and her husband divorced after 21 years of marriage, a vicious legal battle ensued over one of the couple's prized purebred Abyssinians. Linda is now adamant about having a pre-nuptial agreement in place before ever marrying again. "My cats are family," says Linda. "I can always get a new TV."

While courts prefer pet ownership issues be kept out of the legal system, more people are fighting for Fido. If the question of ownership does go to court or mediation, judges want to know who bought or came into the relationship with the pet and whose name is on the owner registration. Be forewarned that most courts consider pets "things" versus sentient beings, so they'll be discussed and bartered over as if they were flatware or grandmother's china.

To avoid future heartache and legal battles, it's a good idea to decide now (while everyone is still getting along) how pet custody will be handled should a separation occur.

Attorney Bernard Clair, named one of eight elite divorce attorneys by New York Magazine, is one of the few attorneys addressing concept provisions for pets in prenuptial agreements. "I mirror language on how people would hopefully decide child custody," says Clair. "I state they'll take into consideration factors such as the emotional and psychological impact of the separation on the animal, the environment in which the animal would be living and how that would impact wellness and happiness, and a slew of other things."

Ideally, the pet would go with whichever partner he/she is more bonded with. Courts are also more frequently having the pets follow the children, to ease the transition for the kids. However, if both parties are equally serious about maintaining a relationship with the pet, creative solutions come into play. These may include split custody arrangements or visitation rights.

Pre-nups should address issues such as what happens if the caregiver moves into a non-pet friendly building or marries someone with allergies. Consider that the person granted possession of the pet is also typically granted the implicit right to make all decisions for the pet—including whether to deny medical treatment or have the pet put down.

Although conversations about a split can be difficult, it's much better to address concerns upfront. "Even the smallest issues, if taken to divorce court, are extremely expensive, time-consuming, and unpredictable," warns Clair.

So what can you do to protect yourself and your pet?

• Put everything in writing. Even if it's not legally binding, having a written document reminds both parties that at one time they were in agreement about doing what was best for their pet.
• Explore mediation. It's less costly and time consuming then court.
• Agree whether both parties will have an equal say on major decisions for the health and safety of the pet. Pet insurance can help defer costs.
• Make sure joint ownership or on/off week arrangements aren't causing your pet undue stress.
• Don't use pets as leverage.
• Ask who the pet is most attached to? Who is more attached to the pet? Who is able to offer the time and resources to care for the pet? Put aside your wants and determine what's best for the pet.

Dena Harris writes for numerous pet publications and is the author of the award-winning humour book, Lessons In Stalking: Adjusting To Life With Cats.

Her newest book, Kiss My Kitty Butt: More Life With Cats, is due out in late 2008.