But Who Gets to Keep Fido After the Divorce?
January 22nd, 2019 - By Robert J Nachshin and Heather Saint
As of January 1, 2019, California family law courts have a new way of dealing with the family pet in divorce proceedings. Historically, the family pet was treated as property rather than a family member which meant custody over the family pet was given no more consideration than that in which a Court would give to an automobile with the presumption being that each spouse would be entitled to half its value at divorce.
The appropriate approach to post-divorce custody of a family pet has been a long-standing debate due to the fact that a family pet doesn’t fit squarely within the property category as it is not an inanimate object. However, the most practical alternative would be to treat the family pet more akin to a minor child, and while most pet owners would find this to be the more appropriate approach to handling post-divorce ownership of their beloved pet, the majority opinion recognized that no matter how loved and adored a family pet was, there remained significant distinctions between a family pet and a minor child to justify treating the two as one in the same.
However, in September of 2018, California’s governor signed into law AB 2274 (now known as Family Code Section 2605) which many feel reflects an appropriate balance of the two schools of thought on how to treat post-divorce custody/ownership of the family pet.
The new law is Family Code Section 2605. It states:
(a)The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. 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.
(b) Notwithstanding any other law, including, but not limited to, Section 2550, 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.
(c) For purposes of this section, the following definitions shall apply:
(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.
(2) “Pet animal” means any animal that is community property and kept as a household pet.
As a result of the new law, ownership of the family pet isn’t so black and white as to who paid for the purchase of the pet and, if purchased jointly, the courts are no longer inclined to resolve the matter by suggesting the parties sell the pet and split the proceeds. Today, not only will the Court consider what is in the best interest of the family pet by considering factors like who walks, feeds and plays with the pet the majority of time and ensuring its proper care but they can also now, upon request of a party, assign sole or joint ownership of a community property pet animal taking into consideration the care of the pet animal. California is the first state in the country to pass such a law.
We have experience resolving the custody of pets following a divorce. If you are contemplating divorce, or currently are a party to a divorce proceeding, and you have a beloved family pet you want custody of, don’t hesitate to call the Law Offices of Robert Nachshin!