Who Gets the Dog? Family Pet Custody in a Divorce Proceeding

 Posted on August 05, 2014 in Divorce

While custody battles are typically associated with fights over who gets the children, the reality is that fights over who gets the family pet can be equally contentious. More than half of Illinois households have a pet, and many of those households likely view their pet as a member of the family. This can create problems when a pet-owning couple divorces.

Illinois law traditionally treats animals as personal property. In a divorce proceeding, the general rule is that the family pet will be awarded to one party or the other. There is no provision for joint ownership. Illinois is an equitable division state, meaning that property will be apportioned fairly but not necessarily equally. Of course, what is fair financially might not be fair emotionally. Some judges recognize this and choose to treat pet custody issues similarly to child custody issues.

There are no specific guidelines for awarding pet custody, but the court could consider factors comparable to the best interests standard. As with children, the court might determine custody based on what is in the best interests of the animal. For example, if one party owned the pet before the marriage, he or she might maintain custody after the marriage. However, there are additional factors the court could consider, including:

• Who the primary caretaker is — which party feeds, walks, and otherwise cares for the pet;
• Who pays the vet bills, buys the pet food, and generally covers the pet’s expenses;
• Who is awarded child custody, especially if the child wants the animal; and
• Who has the ability to care for the pet, based on work schedules and any other relevant factor.

The divorcing couple may also come to an agreement without court intervention.

A Note on Legal Protections for Abused Animals

In 2007, Illinois passed a law that protects animals in domestic violence situations. When a court gives a protective order, it has the legal authority to include a pet. State law takes animal abuse seriously and recognizes that spouses and children are not the only ones endangered in domestic violence incidents. Thus, when a court orders an alleged abuser to keep his or her distance, the family pet can also be protected. (A history of – or potential for – abuse is another factor that could determine pet custody.)

The Humane Care for Animals Act governs the care of animals in Illinois. The law establishes a baseline standard of care, which, if violated, could constitute a criminal offense. Pet owners have a duty to care for their animals by:

• Giving them enough good-quality food and water;

• Ensuring they are sheltered and protected from bad weather;

• Seeking veterinary care to prevent pain and suffering; and

• Generally providing humane care and treatment.

In addition to incurring criminal penalties, violators could lose their pet ownership rights in a custody or domestic violence proceeding.

We understand that your pet is important to you. Our experienced Kane County family law attorneys will advocate on your pet’s behalf, whether in a custody battle or in a hearing seeking a protective order. Contact us today for a consultation. We can assist those in the St. Charles area.