Deciding who gets the pet when owners split up: Rise in pet custody disputes during divorce proceedings leads to new laws

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Across the United States, there’s a growing movement to recognize pets more akin to family members than personal property, with several states already having laws on the books relating to the treatment of pets in divorce.—Pets have become an increasingly common point of focus during divorce proceedings, and family courts across the country are beginning to recognize this formally by providing pets with rights more akin to those of a family member as opposed to property.

California is the latest state to join this movement, with a new law regarding pet custody in divorce, which went into effect at the start of 2019.

California’s new law became official on New Year’s Day 2019, after being signed by governor Jerry Brown, a noted dog lover himself. The law allows judges in divorce cases to consider the best interests of the animal as opposed to simply treating the pet as property. The law does not mandate this, however, and therefore only provides the judge the opportunity to do so if she sees fit.

When regarding the best interests of the animal, factors such as who cares for the pet and spends the most time with it and who will best be able to take care of and provide for the pet in the future are all relevant.

“Most people who have a dog or have had one in the past will agree that it was a loved member of their family, and I certainly will add myself to that list as well,” says Brandon Bernstein, a Maryland divorce attorney. “Considering what’s in the best interests of an animal, as opposed to strictly viewing them as a matter best handled via property distribution in divorce, may provide a more just measure to deal with a pet in such difficult circumstances. I would expect more states to continue passing similar measures in the years ahead.”

California is the third state in the country to have some kind of law regarding pets in family law cases on the books. Alaska enacted a pets wellbeing divorce statute in 2017, which was then followed by Illinois in 2018.

Many view more states potentially adopting similar laws or regulations in the future as a logical next step, considering that there are anti-cruelty and abuse laws for animals which clearly indicate that they are not merely property.

Those who are moving through divorce cases in other parts of the country though may find it difficult to pursue such matters in the same fashion. These types of specific divorce laws are handled on a state-by-state basis, and if the state that is hearing a couple’s divorce case does not currently have a similar law in place, the established protocol remains treating pets as property.

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