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Who Gets Custody of Man’s Best Friend?

Leesa M. Poag, Attorney, Woodruff Family Law Group

When a couple decides to separate and end their marriage, there are often other issues that must be resolved along with the divorce.  Family law attorneys in North Carolina often include claims for issues such as custody of the children and division of the marital property along with the divorce claim.  But an issue that has recently become more and more prevalent is one that falls somewhere between the custody and property division issues – when two people separate, which spouse gets to keep the family pet?

While the question of who will keep the pets is a common one in many cases, it has proven to be especially contentious in cases where a couple has no children, or the children are grown up and are no longer in the home.  One can understand how this situation can lead to a party having a stronger than normal bond with the pet, sometimes even treating the pet as their child.  (And hey, you don’t have to pay to send Rover to college!)

Traditionally, courts have viewed pets as personal property of the parties.  The typical approach to dividing personal property is a three step process which includes first classifying the property (either separate or marital), next, valuing the property as of the date of the parties’ separation, and finally making a distribution of the property between the parties.  While this approach might be simple when it comes to your sofa, it is proving to be a much more difficult question when it comes to your Schnauzer.  How does one place a value on a pet?  Should the court value your family dog at the amount that you paid for him, or should the sentimental value that the dog now has as a member of the family be considered?  And if the parties can’t agree as to who should keep the pet, how does a judge, who is unfamiliar with the parties or the animal, make such a determination?

To better address this issue, some Courts and legislatures are now shifting towards more of a custody standard in making this decision.  Instead of viewing the pet as property, they are beginning to consider what is in the best interest of the animal. In January, Alaska became the first state to enact pet custody legislation.  This legislation allows a judge to consider the animal’s well-being in deciding who will be awarded possession of the family pet.  Under the pet custody legislation, the Court can consider factors such as who has more of a connection with the pet, who provides for the pet’s necessities, such as feeding, grooming and vet visits, and whose lifestyle is better suited for pet ownership.  A party can actually present evidence in court showing that it would be in the best interest of their pet to live with them as opposed to their spouse.  Some Courts have even gone so far as to allow shared custody and visitation of the pets after a couple’s divorce.

Lawmakers in many other states hope to follow in Alaska’s footsteps and enact similar pet custody legislation to better address this issue. Hopefully soon local lawmakers will follow Alaska’s lead and allow every dog to have their day in court in North Carolina.