Divorce and Pet Custody: Who gets Fido?

A young girl takes a nap with her dog.

Who gets Fido or Fluffy in a California divorce? There is a new law you should know about regarding divorce and pet custody.

On January 1, 2019, a new law went into effect in California involving pets in a divorce case. This law lets the courts determine the best interests of the family pets in a divorce or legal separation case. It allows a judge to decide if there should be an award of sole ownership or joint ownership with visitation schedules awarded to both parties. 

Under the new Family Code section 2605, if a party to the case requests an order for the care of a pet while a case is pending, the court can make such a temporary order. But as section 2605(a) is written, this temporary order does not have any bearing on the court’s final order that may be entered regarding pet ownership:

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.

The temporary order could be made for any number of reasons, including the prevention of animal cruelty or to make sure the right person is taking care of the pet. 

In section 2605(c)(1), the term "care" is defined as including, but not limited to, the prevention of acts of harm or cruelty, and the provision of food, water, veterinary care, and safe and protected shelter.

Who Gets Fido in Divorce and Pet Custody?

The person in the household who is more bonded with the pet should be the person entrusted with the pet’s care while a divorce case is pending. That doesn’t necessarily mean that the pet will end up with that person once the case is closed. In any case that deals with divorce and pet custody, final custody of the pet will be determined by an agreement of the parties or by a judge after a hearing or trial.

This is a new and unique provision in the Family Code that treats pets much the same as children. Many of the same things are considered when determining pet custody within or without the household.

What is lacking, is a provision for pet visitation. This means that the trial courts will have to interpret when and how such visits might happen, at least until an appeals court decision comes down. A decision explains rights in light of past decisions focused on community property and child visitation.

Historically, in divorce cases, pets have been treated like all other kinds of property, meaning they were awarded without considering what was best for them. As community property, pets were on the same level as the television or the sofa set. But now, any family law attorney practicing in California will need to prepare their clients and coach them through establishing and documenting the relationship with the household pets.

For a person to be awarded sole pet custody, the court will have to look at all the evidence and make a decision based on the testimony and documents that will be provided by each party. With the change to the law, divorce and pet custody is a new area that attorneys must familiarize themselves with thoroughly.

That is not to say this is a bad thing. The relationship most people have with their pets is a family bond, and severing or disrupting this bond could be quite harmful to the dog or cat that gets taken away from those they love best.

Something to consider is that section 2605(a) states that the court can order a party to care for an animal, which makes it seem that the court could require one party to care for a pet even if she didn’t request an order herself. The idea that a party could be compelled to care for a pet is an interesting legal point. It’s possible we might see orders that resemble a restraining order, requiring someone to care for and not abuse a pet, with other sorts of related orders that complement the orders for basic care.

At some point, if this is not already underway, the Judicial Council will likely create one or more forms that deal with this issue. And some of the current forms will need to be modified to reflect this new law, in particular, the Petition for Dissolution and the Judgment forms and attachments.

This is all for the best, and now, legal practitioners in California can more easily aid our clients who have pet family members they want to care for and protect. Family Code section 2605 gives us one more useful tool in our attorney briefcase in the area of divorce and pet custody.

Author's Bio:

Jane Wesley Brooks, a San Diego family law attorney, is a Certified Family Law Specialist by the California State Bar Board of Legal Specialization and is the founder and principal attorney of JWB Family Law, APC, a boutique family law firm in downtown San Diego.

 

NOTE: Many state and federal laws use terms like ‘custody’ when referring to arrangements regarding parenting time and decision-making for a child. While this has been the case for many years, these are not the only terms currently used to refer to these topics.

Today, many family law practitioners and even laws within certain states use terms such as ‘parenting arrangements’ or ‘parenting responsibility,’ among others, when referring to matters surrounding legal and physical child custody. You will find these terms as well as custody used on the OurFamilyWizard website.