The province of British Columbia (B.C.) and the State of New York are leading the way in the field of pet custody and could be just the nudge needed to signal others to catch up. In the United States, pets are generally categorized as property to be distributed pursuant to the applicable state’s property distribution laws. There are a handful of states that stand in exception to this standard, including Alaska [1], California [2], Illinois [3], Maine [4], New Hampshire [5] and New York [6]. Given the scientific backing [7] of emotional bonding between pet owners and their pets, the current laws stand in stark contrast with how child custody is awarded, which most states evaluate via a “best interest” analysis.
If you are going through a divorce with pets in the family, then you know how frustrating it is when a judge looks at your fur child like a flat-screen television or a set of golf clubs. Even though some states have taken paws-itive steps to humanize pet custody, in many of these states, the laws still consider pets as property. Additionally, some laws give judges the discretion to make decisions for the well-being of a pet, but not all require judges to do so.
However, if you’re barking for change, it seems you are being heard. On Monday, March 27, 2023, British Columbia Attorney General Niki Sharma introduced legislation that would amend B.C.’s Family Law Act. [8] The legislation aims to clarify and provide more guidance for judges to decide what to do with pets in a divorce and would be the first law of its type in Canada. Proposed amendments include requiring the consideration of factors such as each person’s ability and willingness to care for a pet, the relationship a child has with the pet, the relationship of the pet to the family, and the risk of family violence or threat of cruelty. [9] The word “requires” is very important as some of the current laws purposely do not use this language.
Earlier this year, a case out of New York, Acosta v. Shaw (Case No. 71730/2020), became the first of its kind. This case is unique because it was not a divorce case. It was a case between two unmarried individuals going through a breakup revolving around who gets the dog — “Waffles.”
Waffles made his way to the New York Supreme Court’s 11th Judicial District on this issue. The Court’s decision is based heavily on Section 236 of the Domestic Relations Law that New York added in 2021 that gave courts direction for awarding “companion animals” (i.e., pets) in divorces. This law, however, has not been utilized for cases outside of divorce. The court decided what was in Waffles’ best interest, taking into consideration not only who purchased the animal, but that one party lived in a duplex and one in an eleventh-floor apartment, one party had direct access to a yard, and which party was caring for the animal pending the final hearing.
So, it’s not just hotels and restaurants that have become more pet-friendly, it is now custody and property laws as well. This broadens what courts can do, not only in domestic relations courts, but perhaps in general sessions courts or chancery courts involving animals. The effects of this will be doggone interesting as new laws invite more litigation and could be used as strategy for custody with children. If one of the factors a court analyzes is the relationship between a child and a dog, then the parent who is granted primary custody of the child will have a leg up on custody of the dog as well. It also creates an opportunity to use a pet as incentive to manipulate a child into spending more time with one parent over the other and vice versa. It will be interesting to see how far litigants will go to prove that their beloved pet is happier with them. Will they hire a veterinarian as an expert witness; an animal psychologist? Only time will tail.
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[1] https://www.akleg.gov/basis/Bill/Text/29?Hsid=HB0147A
[2] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=2605
[3] https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm
[4] https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280078920
[5] https://www.gencourt.state.nh.us/rsa/html/XLIII/458/458-16-a.htm
[6] https://www.nysenate.gov/legislation/bills/2021/S4248
[7] https://www.dvm360.com/view/global-research-confirms-the-strong-bond-between-people-and-pets
[8] https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/current-reviews/family-law-act-modernization
[9] https://www.thecanadianpressnews.ca/politics/b-c-plans-family-law-changes-to-decide-who-gets-the-pets-when-couples-split/article_7c36c6da-24cb-5033-ad8a-624f6afdb09e.html