How courts handle pet custody battles after a breakup
Breakups can be devastating. So the last thing you need during a painful breakup is to worry whether your ex is going to abscond with the precious pet. This is why it is smart to arm yourself with some knowledge beforehand about how the legal system handles these situations.
As a starting point, there is a misconception that whoever buys the pet will be able to keep it. But this is not legally accurate; while origination is certainly a factor that is considered, the legal analysis can be much more complicated than that. Here are a few principles to be wary of:
Although many Americans love their furry friends like children, in the eyes of the law, pets are property. Therefore, despite the popularity of terms like “pet custody” or “dog custody,” there really is no “custody” battle over pets. At least, it is no more of a custody battle than you would have a custody battle over a flat-screen TV. The legal dispute is not for custody; it is for rightful ownership.
If you and your ex are fighting over a shared pet during a divorce, the pets future will be determined in the divorce proceedings along with the rest of your personal possessions. The court will first classify the pet as marital or separate property, as it would any other item of property. The court may then consider, however, who would best care for the pet. The judge will consider a variety of factors (discussed below). Increasingly, judges have also awarded joint custody of pets.
If you and your ex are fighting over a shared pet during a breakup, but not a divorce, the matter becomes more complicated. In general, although there are some exceptions, you would not take legal action until or unless your ex physically takes the pet from you without your permission. In this case, you would have to sue your ex for the pet under a property-recovery legal theory, such as replevin. The presiding judge would most likely consider some of the same factors that a divorce court judge would.
In determining who will take home the pet, judges will consider the specific facts of the case. In other words, it is almost always impossible to predict the outcome of a certain situation. However, the following factors will likely be considered:
The last bullet point, while surprising, is a matter of practicality. Oftentimes, according to family law attorney Jacqueline Newman, “the dog follows the kids.”
What Can You Do Now to Protect Your Pet?
The best thing you can do, preemptively, is to enter into a pet “prenup” agreement with your significant other while you are still on good terms. (A prenup is actually a misnomer here, because the contract does not have to relate to marriage; rather, you can enter into an enforceable written agreement with your partner regardless of marital status).
The factors in the bulleted list above will be largely irrelevant if you have a written agreement regarding who will keep the pet in the event of a breakup. The court will honor an enforceable written agreement.
Set yourself up as the primary caretaker of the pet. Spend as much time with it as you can, take it to the vet, to the store, or on walks. Use your money (checks or credit, so there is a record) to buy the pet its necessities. Be knowledgeable about the pets medical conditions. The longer you do this before the breakup the better. Document everything.
If you have already broken up and are actively fighting over the pet, monopolizing the pets time and showering it with gifts will look like a strategic maneuver. The most important thing to do at this point is to gather evidence: receipts, documentation, and records showing that you paid for the pet, that you bought its food, that you registered for its license, etc. If you have been the primary caretaker dealing with the veterinarian, you could also consider asking the vet for an affidavit stating that all of his or her dealings were with you. The same principle goes for a dog walker or obedience trainer. The key here is that you want to establish evidence — beyond just your words — that the factors listed above should weigh in your favor. You could also consider submitting evidence showing your capability to take care of the pet going forward. For example, if post-breakup you are moving into a larger place with a yard, bring the court some evidence of that.
The Pets Best Interest
Regardless of how acrimonious your breakup is, let us hope that neither you nor your ex are trying to use your pet as a bargaining chip or pawn for revenge. The best thing you can do is consider the best interests of your pet.
The law is increasingly aligned with this. Although pets are technically property under the law, judges have increasingly considered the pets best interest in deciding who keeps it. In Hamet v. Baker (Vt. Apr. 25, 2014), for example, from the Vermont Supreme Court, the court essentially endorses a “best interests of the dog” standard, much like the best interests of the child standard used in custody cases.
This courts opinion reflects an important principle. If you really love your pet, you will have to seriously consider — with as little bias as possible — whether you or your ex will offer it the better home.
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People who believe that their animal is being wrongfully withheld can sue (replevin action) to try to get the animal returned. Courts will consider the evidence of ownership presented, including adoption/purchase records, microchip and license registration, veterinary records indicating ownership, who has been the animal’s primary caretaker and paid for the animal’s needs, etc. Some courts have also considered the animal’s well-being. I hope that you and your ex can work out an amicable arrangement that is in the best interests of the dogs. Also worth noting is a fairly recent California law which states, in part: “… 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.”
My ex left me abruptly without notice and took her things and the dogs (2) while I was at work. We adopted them together but they are in my name (I paid all the fees). I have paid for most of the vet bills, food and a portion of dog walking fees. She paid for the dog walker for the past 6-8 months because she wanted to use someone else. We lived in SF and she moved them to San Diego. I would have been willing to amicably agree to 50/50 joint custody but was not given the chance. She has blocked my calls and does not respond to email. I am not sure how to proceed.
PLEASE NOTE: Responses to legal inquiries are not meant to replace seeking legal advice from an attorney in your state. The materials in this website and any responses to questions are for informational purposes only and are not intended, nor should they be construed, as legal advice. This website, the information contained herein, and any responses to questions directed to this column are not intended to create and do not establish an attorney-client relationship. You should not rely or act upon any information provided on this website or in any response to your inquiry without seeking the advice of an attorney in your state regarding the facts of your specific situation.
Demonstrating Rightful Ownership in Court
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To get pet custody after a breakup, keep in mind that a court will usually side with the person who currently has possession of the animal. If you dont have possession of your pet, your best chance of getting it back may be coming to an agreement with your ex. If you cant come to an agreement, consider attending mediation with your ex to reach a custody agreement. Or, you can take your ex to court and try to prove that the animal is rightfully yours. For more advice from our Legal co-author, like how to reach a custody agreement with your ex, read on.
Who gets the dog after a breakup?
Many people consider their pets part of their family. So many show their dog or cat just as much love as their spouse or children. What happens when a couple decides they cannot be together anymore?
What to do when that happy family has to part ways? If you’ve ever dealt with pet custody, you probably know that it can be a very sticky situation. Here, we discuss different considerations for when you’re dealing with pet custody.
If you are considering who will obtain pet custody, the first thing to consider would be if both people want the pet. Sometimes when a couple gets a pet, it’s because one person wants the pet. The second person might be indifferent to pet ownership. If this is the case, custody should be straightforward.
If that’s not the case, you might have to prepare for a custody battle. Being prepared is your best bet in winning custody of your pet. If you find yourself in court fighting for your pet, there are a few things the court will look at.
Often, adoption centers will not release a pet without them having met all members of the household. Most likely you and your ex went together to purchase the animal. However, courts will look at who’s name is on the receipt.
Most courts see an animal as property. As such, the person who paid for the animal is the one who is entitled to keep them. Although this is not set in stone. If your ex is the one who paid for the animal, don’t give up! We’ll touch on what you can do below.
If you did not purchase the animal, perhaps you purchased other necessities for the animal. Is the dog registered under your name at the vet? Is your name on the microchip records? Anything else you can think of will help your case.