Over the last ten years, one of the hot issues in California divorces is what is to be done with the family pet. This is not a trivial matter at all. According to a recent survey conducted by the American Pet Products Association, 70% of American households have at least one pet. In other words, pets can be found in more than 90 million homes.
Family Pets come in all shapes, sizes and species. This includes dogs, cats, pigs, llamas, fish, and any other four-legged (or finned) creature that can be imagined. Regardless of what beloved pet is in the home, it can become the center of a bitter divorce court battle.
Until recently, courts in California were compelled to treat pets as personal property. This meant that, however attached the spouses were to their cherished pets, the judge was legally required to award the pet to one of the spouses. There was no provision allowing a judge to make custody orders, such as the kind that are made every day with minor children.
Fortunately, in 2018, the California legislature came to the aid of divorcing pet owners, by enacting California Family Code section 2605. This code section represents nothing less than a revolutionary change in how a pet figures into its owners’ divorce.
This is the text of Family Code section 2605:
(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.”
In non-legalese, this means that:
● A judge can make temporary pet custody orders that will be in effect while the divorce case is winding its way through the court system. Whatever the temporary order is, it will not have any bearing on the judge’s final pet custody order.
● At the final trial of the divorce case, the judge has the power to award custody of the pet jointly to the spouses or to one spouse, exclusively. In making this decision, the judge is required to consider which spouse has provided for the care of the pet. The term “care” is broadly defined to include protecting the pet from violence, and providing for the pet’s food, medical care and shelter.
● The judge has the power to make a joint custody order, under which the pet mommy and daddy will share their beloved’s time, as well as medical decisions. On the other hand, if the facts call for it, the judge can award the pet to one of the spouses, thereby cutting the other spouse off from any contact with the pet.
What Does this Mean For You?
As with many issues in California divorce cases, the judge has a lot of “judicial discretion” in deciding what is to be done with the family pet. For that reason, it makes sense to negotiate an agreement without involving the courts. If you and your spouse can mediate this issue, you will avoid the risk that the judge will give you even less than you are requesting, if you end up in court.
If you are not able to work out a pet custody agreement with your spouse, the decision will have to be made by the judge. In such a case, each divorcing spouse should implement strategies that will maximize the likelihood that he/she will get the pet custody order they desire.
This means that you need to lay the groundwork to convince the judge that what you are requesting is reasonable and/or what your spouse is asking for is not reasonable. If you have not been as involved in the care of your pet as your spouse, you should immediately take steps to get more involved. This can be accomplished by ramping up your involvement in walking, feeding, grooming, cuddling and caring for your pet’s medical needs. Conversely, if you have been the hands-on pet owner you should keep a diary of all the things that you do for your pet on a daily basis.
Thinking ahead to the trial of a pet custody case, you should make sure to have as many witnesses as possible to verify your involvement with your pet. This could be anyone; your house sitter, veterinarian or next-door neighbor. Consideration should also be given to serving subpoenas to obtain veterinary and pharmaceutical records.
In either event, it will be essential for you to paint as clear a picture as possible about your involvement in the care of your pet. Be sure to keep this in mind as you prepare to for a mediation or trial.
Pet Sharing Provisions
Regardless of whether you and your spouse work out a sharing arrangement or the judge is asked to make a decision, there are certain provisions that divorcing couples should consider.
● Time Sharing Arrangement
Sometimes, couples include in their agreements a general provision that simply states that they will share the pet. From my experience, this can cause more problems than it solves. Without a specific time-sharing schedule, divorced couples can often end up constantly negotiating over when the pet will be with each of them.
Instead of a general, open-ended provision, I usually recommend to my clients that a specific time-sharing schedule be included in the agreement or court order. For example, there can be a clause that specifies which days of the week the pet will be with each spouse, and even the times when their respective custodial periods begin and end. Provision should also be made for special days and holidays, such as the pet’s birthday.
● Daily Care
In some cases, it might be necessary to specify the pet’s dietary needs, particularly if it has a medical condition that requires a special diet. Other provisions for the care of the pet should also be considered, such as grooming, medications, walking and travel.
The pet parents should also consider a provision for the sharing of expenses that are typically incurred with the care of a pet, such as food, medical care and grooming.
● Medical and End-of-Life Decisions
Where the pet has a significant medical issue, there should be a provision dealing with important medical decisions. This would include surgical procedures and end of life decisions. As a general framework, the agreement or order should deal with the following:
- The extent to which the pet parents are required to notify the other of any routine veterinary visits in time to enable the both parents to attend.
- Whether joint agreement is required for the pet to undergo veterinary visits, non-routine medical procedures and surgeries, as well has how the cost of those procedures will be shared.
- End-of- life decisions, including burial, cremation, and the ultimate decision as to whether and/or when to terminate the pet’s life.
As time passes, circumstances for both the pet and its owners might change in significant ways. For example, the pet might develop a medical issue that limits its mobility to the point where being moved between homes could further compromise the pet’s symptoms. Or, one of the spouses might move to a different metropolitan area. This brings up the question of whether Family Code §2605 orders can be modified.
Under the law, child custody and visitation orders are always modifiable if there has been a material change of circumstances since the last order was made. However, court orders dividing the community property are not modifiable. Unless the spouses provide for modifiability of a final Family Code §2605 agreement, it is very possible that a judge might conclude that such agreements cannot be modified, over the objection of one of the spouses. That view is supported by the fact that Family Code §2605 is in the part of the Family Code that deals with division of property.
With the uncertainty in how the courts will interpret Family Code §2605, any pet custody agreement must include a provision that addresses modification. If the couple wants to be able to change the order in the future, the initial agreement must specifically state that it is modifiable, upon the showing of a change in circumstance. On the other hand, if the couple wants the pet custody order to be final and not changeable, their agreement should state that, as well.
In dealing with disputes regarding the custody of a minor child, the law requires that the hallmark of any agreement or ruling must be what is in the child’s “best interests.” Even though Family Code Section 2605 does not expressly incorporate that concept, the process of determining a pet’s post-divorce future necessarily requires the consideration of what is in the pet’s best interests. It is heartening for divorcing pet owners to know that this new law finally gives pets a voice in that process.
Please email us at [email protected] if you have any questions regarding this, or any other family law topic.