Can the Court Order Custody of Family Pets in Divorce?

Many pet owners would considers their pets more like their children than property.  However,  pets animals are considered personal property. Penal Code section 491 provides: “Dogs are personal property, and their value is to be ascertained in the same manner as the value of other property.”

Newly enacted Family Code section 2605 provides that the court may enter an order for the care of a pet animal pending final determination of ownership. Additionally, under FC 2605 the court may assign sole or joint ownership of the pet animal.

Family Code section 2605 provides:

(a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal.

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.

(c) For purposes of this section, the following definitions shall apply:

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Family code section 2605 does not change the personal property characterization of pet animals.  Rather, it gives the court discretion to make temporary orders for the care of animals pending the court’s determination as to who is awarded the pet, and gives the court discretion to award joint ownership.

When both parties want the pet, the first question the court should ask is: was the pet a gift? If so, then the pet is separate property and is confirmed to that person.  Family CodeSection 770.  If the pet is community property then the court should consider the psychological attachment each party had to the pet. Marriage of Fink(1979).

There are few published family law cases on division of pets. My experience has been that parties generally reach an agreement as to who gets the pet(s).  However, when parties do not agree, emotions can run high.  One party may claim the pet was a gift from the other party, but the other party can demonstrate that he/she was the primary care taker for the pet. Should that weigh against the party asserting the gift?

For now, trial courts have broad discretion in making a determination regarding ownership of pets and the care of pets pending such a determination.

If you want to hear more about the latest information about how to handle family pets in divorce, please contact our office. The Law Office of Bawden and Kochis handles cases with family law issues regarding adoption, annulment, mediation, domestic violence, pensions, child custody, child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at Officestaff@Richardbawdenlaw.com.

When he is not practicing law, Robert enjoys traveling, especially to the Caribbean and to Hawaii. He also claims the Lakers as his favorite sports team, loves Italian food, and often relaxes with a guitar.