Should We Treat Pets as Children? A Look Into the Rise of Animal Custody Cases.
The division of assets and property are perhaps the most hotly contested issues when it comes to settling a divorce, especially when there are no minor children involved. But what about the dog you purchased right after you got married, or the cat you adopted when you moved in together? Who will get the little “baby” after the divorce? Animals custody cases are becoming an increasingly prevalent issue in our nation, and Illinois is no exception. Dog and cat ownership in the United States has quadrupled since the 1960s, and what we spend on our pet is more than double what it was in the 2000s. While there has been a large increase in pet ownership, legislatures have been reluctant to write statutes determining how to award pet custody in family law cases.
What Does Illinois Say About Animal Custody Cases?
Illinois does not have a statute outlining how to proceed with regards to custody of animals in a divorce case. 750 ILCS 60/214 is the domestic violence statute that outlines the protection of animals, allowing a judge to award temporary legal custody of an animal if a petitioner can prove the domestic abuse is also endangering the animal. However, no such specific custody statute exists with regards to cases of marital dissolution. Not surprisingly, many judges have turned away the issue of animal custody cases, focusing instead on issues surrounding the custody and well being of children.
But the tables are turning as Americans buy more pets each year, and continue to get divorced. The question remains: how do we treat animals in these cases?
Current United States statutes with regards to other animal issues, such as animal cruelty, animal testing, and domestic violence, treat animals as a form of personal property, affording people the legal right to own and control that property or have absolute possession. Illinois follows suit and also treats pets as property, including them in the “equitable distribution” of the marital estate if it was purchased during the marriage.
The factors that are considered in determining who will take possession of a pet:
- Which party purchased the pet,
- Which party typically cares for the pet,
- Which party has the means to care for the pet, and
- Which party has a stronger attachment to the pet.
Some attorneys advocate moving away from a system that retains animals as property, suggesting that animals should possess self-ownership for some purposes. The legal title of the animal would remain in the hands of the human owner. This treats the owner more as a “guardian” than an “owner.” It is with this system that we witness a change in the relationship of a pet and an owner to the similar relationship between a child and its custodial parent.
Case precedent illustrates how animals have been treated just as children in custody cases. The Arkansas case of Dickson v. Dickson awarded joint custody of the dog to the divorcing parties. The husband was ordered to pay up to $150 a month for the dog’s care and maintenance.
Animal custody cases can get as specific as the case of In re Marriage of Fore, a Minnesota case. The custody arrangement for the dog was for the husband to be granted visitation the first seven days of every month. Later court findings determined the visitation schedule unsuccessful, and the husband later relinquished any visitation rights or access to the pet.
There is current judicial reluctance to uphold the “best interest of the animal” approach, as is considered with child custody and visitation awards. Additionally, if there are unemancipated children in a family, generally, the pets will go to the custodial parent. If no minor children are involved in the divorce proceedings, then the case will be more difficult.
The bottom line is that current child custody frameworks and statutes are useful in pet custody disputes, but do not govern. For example, looking to the best interest of the animal may not be a valid standard in all courts, but determining who the primary caretaker is, and who offers a more stable living environment may be. Some attorneys have suggested adopting a point system consisting of both property and non-property considerations. Property characteristics include who purchased the animal, and who pays for food and medical bills. Non-property characteristics include who has the better living environment for the pet, lives a cleaner lifestyle, or has ensured the animals well being.
Don’t worry if you and your soon-to-be ex –spouse are fighting over custody of the dog or cat- you aren’t crazy. There have been cases where a party has gone to jail for hiding the couple’s cats and refusing to disclose their location in court. Couples can also use court as a last resort as mediation has been a successful alternative for many pet custody disputes. Whether settled in mediation or in court, your attorney will be happy to assist you fight for the custody of your furry best friend.