I am not sure why, but I have noticed a recent uptick in questions dealing with what I will call “pet custody.” Usually, I hear the caller or emailer out and then offer that it is almost always more cost effective — meaning cheaper — to get a new dog than it is to pay a lawyer to fight about the existing dog. Incidentally, I have never had a question about a pet other than a dog. When the potential client tells me that I do not understand how special their dog is, I relent and after a month or two of bills, the client heeds my advice and gets a new dog. In terms of the law on situations like this, there is a case that originated in Chester County, Pennsylvania that offers some guidance. The case is Desanctis v. Pritchard, 803 A.2d 230 (Pa. Superior 2002). Factually, the couple married in 1991 and divorced in 2000. Shortly before their separation, the wife purchased a dog named “Barney” from the local SPCA. The parties’ divorce decree references a property settlement agreement that devoted a significant amount of space to “custody” of Barney. The parties agreed that Barney would be the wife’s property but that the husband would have the right to continue visits with Barney after divorce. When the wife moved from Chester County to Bucks County, she cut off the visits and the husband filed suit in Chester County seeking, among other things, to mandate “shared custody” of the dog and enforce the agreement.
The Chester County judge wanted nothing of it. He granted the wife’s preliminary objections, dismissing the case. The husband appealed to Pennsylvania’s Superior Court which affirmed the Chester County Court. The Superior Court Opinion focuses on the fact that despite our love for our pets, they are not people and a court cannot get into granting “custody” of pets. The court found that pets are personal property along the lines of a table or a lamp and, as absurd as it would be to grant a custody schedule for a table, it is equally absurd for a court to set a custody schedule for a dog. The interesting thing about this case is that the parties went so far as to work out, draft, and sign a custody schedule for Barney, and the courts refused to enforce that agreement. So, what does that mean for the party getting divorced when there is a dispute over a pet?
My first bit of advice goes back to the beginning of this post; it is cheaper to get a new pet than to pay a lawyer to fight about an existing one. Second, while title to marital property is generally irrelevant when it comes to equitable distribution, in these situations it may become relevant. Some dogs are registered with the American Kennel Club and have ownership papers. The same is true for some cats. If you are the party with title to the pet, you certainly have a stronger position to retain possession of the pet if it is, in fact, your individual property. Another point goes back to the definition of marital property subject to equitable distribution. If the pet was acquired before marriage by one of the parties, it is not marital property and belongs to the original owner.
Finally, as you may have gathered from reading this, courts do not want to get involved in pet custody cases when time is better spent on child custody cases. So, in these situations possession really does count for 9/10’s of the law. It is very difficult to use the courts to wrest possession of a pet from the other party. While I am not suggesting that a “dispossessed” spouse use self-help to obtain custody of a pet, I did have a situation once where the spouse formerly in possession of the couple’s dog was left with no recourse to get the dog back after my client essentially took the dog. However, that exercise leaves open territory for another future blog post, how in family law every action by one party leads to an equal and opposite reaction by the other.