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Who Gets Custody of the Pets in Our Divorce?

Custody of Pets in California DivorceIf you don't have a pet, it might seem like a minor, even a frivolous issue. If you do have a pet, you know that it's anything but. When you and your spouse divorce in California, who gets custody of your pets?

For pet owners, their dogs, cats, and other companion animals are often truly like members of the family. Unlike minor children, however, the law does not consider pets “people” with their own legal rights and interests. Instead, legally speaking, at least, they are property — no matter if they're your “babies.”

California Pet Custody Problem-Solving

California is a community property state, but unlike bank accounts or kitchen cookware, you can't just divide your pets in half. Even if you have two pets, it might not be best for each of you to take one, if the animals are attached to each other. So how do you solve this problem?

If you're thinking ahead and drafting a prenuptial agreement, you can agree in advance how you would deal with pet custody in the event of a divorce, even if you don't have any pets at the time of your marriage. If one of you brought a pet into the marriage, it makes sense for that pet to go with the person who had him or her first.

Surprisingly, if you have minor children, that may make pet custody issues easier to deal with. Children usually feel most at home where their pets are, so the transition from dad's home to mom's, and vice versa, is often eased when the pets travel with the children. This is a win-win: the kids get the comfort and stability of always having their pets at home with them, and both parents get time with the pets as well.

What if there is no prenuptial agreement, no pet ownership that preceded the marriage, and no kids whose movements the pet can follow? A court will typically honor whatever agreement you and your spouse can reach, so it's best to try to work this out between you if you can, perhaps with the help of mediation. No matter how much you value your pet, you don't want to spend thousands of dollars litigating over him or her, and a court will typically not order “visitation” with a pet, but will treat it like property and award it to one party or the other.

Pet Custody and Domestic Violence

Sometimes, the issue of who gets the pets in a divorce is bound up in a darker dynamic: domestic violence. Abuse is about exerting power and control over a domestic partner. Many abuse victims are deeply attached to their pets; abusers know this, and a common way of controlling a spouse or domestic partner is to threaten to harm or kill their pets if they leave or report abuse.

The California legislature has taken action regarding this issue. California Family Code Section 6320 offers protection for domestic animals such as dogs or cats, if you have reason to believe that your spouse or ex may harm the pet. Pets may also be included in domestic violence restraining orders in relationships where domestic abuse has occurred.

If you are faced with divorce or separation in California, your pet can be a great source of comfort and companionship. To learn more about how the experienced San Diego family law attorneys of Shaffer & Associates can help you protect your relationship with your pet, contact Shaffer & Associates online or call (619) 595-3167 today to schedule a free consultation.

Categories: Divorce

San Diego Bar AssociationSection of Family LawCalifornia State Bar Family Law American Bar Association Avvo Clients' Choice 2014