Divorce Tips to Avoid a Messy Dog Custody Battle

“One of the saddest parts of a divorce is this question,” Seal Beach, Calif., family law specialist attorney Glen Rabenn says: “Who keeps the family’s pet? It is often a deeply emotional aspect of a divorce, and difficult to reach compromise over as both sides love the animal.”

That issue faced “Mary Anne” and her husband, “Justin,” who worked together as architects. Worked — in the past tense, because “COVID destroyed our business and put so much pressure on our marriage that it fell apart,” both of them explained on a phone call.

“You have been referred to as the Ann Landers/Dear Abby of the legal world, and we thought that possibly you could help us resolve a difficult issue, custody of our darling little Chihuahua,” Mary Anne said.

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The couple’s call could not have come in at a better time as the day before I discussed these very issues with both Rabenn and attorney Barbara J. Gislason from Fridley, Minn., who is recognized internationally as an animal law pioneer.

She wrote a book on this subject for the American Bar Association’s Section of Family Law titled Pet Law and Custody (opens in new tab): Establishing a Worthy and Equitable Jurisprudence for the Evolving Family. She explores the cultural role of animals in our lives, asks important questions regarding our treatment of animals, and discusses how the law should be applied in a manner that is in the best interests of both humans and animals.

Under the Law, Pets Typically Seen as Property

“Historically,” Gislason explains, “Animals – pets – were considered as property, just like the furniture in your home. In a divorce, the courts would look at who paid for the pet and its vet bills or registration fees and award it to that person, regardless of the degree of attachment the spouse had to it.

“As anyone who has owned a dog or cat knows, we love these animals, and this has nothing to do with who bought or paid for food and its health care. So when courts divided a couple’s assets, often very sad and unfair results occurred. But then, several years ago, family court judges and state legislatures began to view family pets as more than just items of property.”

Best Interests of the Pet Standard: Once in Court, What Happens?

As a lawyer, I lived in divorce court for 30 years and saw firsthand how dealing with custody of the family pet can be more difficult than a child custody dispute. Thank goodness, it’s changing at a rapid pace, as three states — Alaska, Illinois and California — permit family court judges to look at custody of pet in a similar way as with children.

“Judges in these states are now required to take into consideration the animal’s well-being, and to answer this question: What is in the best interests of the animal?” Gislason observes, adding, “It is always best for the parties to avoid a horrible, expensive fight in court, and approach custody — and shared custody — with what’s best for the pet in mind.”

I explained that to my readers, telling them to imagine themselves in court, knowing that the judge has discretion as to who is awarded the Chihuahua. Attorney Gislason suggests that you think about how the judge will feel after hearing one or both lawyers do the following:

1. Present one of you as a nice person devoted to the dog, offering examples of loving care shown and arguing the other was much less interested in the dog.
2. Emphasize that his client paid all the animal’s veterinary expenses.
3. That the other person ignored or neglected the animal.
4. That your dispute is motivated by revenge. Judges do not reward pet owners in that situation.

“You don’t really want that kind of a fight, do you?” Both agreed they did not.

“So, how can we resolve this?” they asked.

Pet Custody and Sharing Agreement

Glen Rabenn offers a five-step solution:

1. Have a detailed agreement in writing. Err on the side of being overly specific.
2. It should contain a weekly schedule of custody and state who makes important medical decisions, including ultimately about putting the animal down.
3. Can you take the pet outside of your state? Think of the same things as for a child.
4. Do not leave things to chance.
5. If you have a disagreement, specify mediation or agreed-upon family members to decide the matter.

Gislason agrees, adding:

“Be civil to each other and try to talk it through. Sometimes giving up something else that you want in the marital dispute helps. ‘I will get the dog and you get the mountain bike.’”

She concludes with this recommendation:

“Encourage family members to lean on the person trying to take the other person’s dog away. Family members usually know who the parties are considered as the pet's owner, and I would encourage them to get involved in resolving the matter.”