Who Gets the Dog?

How courts handle pet custody battles after a breakup

Posted Aug 12, 2015

Breakups can be devastating. In fact, a widely-publicized study released last week by Binghamton University and University College London found that while women hurt more after breakups, men never fully recover. So the last thing you need during a painful breakup is to worry whether your ex is going to abscond with the precious pet. This is why it is smart to arm yourself with some knowledge beforehand about how the legal system handles these situations.

As a starting point, there is a misconception that whoever buys the pet will be able to keep it. But this is not legally accurate; while origination is certainly a factor that is considered, the legal analysis can be much more complicated than that. Here are a few principles to be wary of:

  1. Pets are property.

Although many Americans love their furry friends like children, in the eyes of the law, pets are property. Therefore, despite the growing popular terms of "pet custody" or "dog custody", there really is no "custody" battle over pets. At least, it is no more of a custody battle than you would have a custody battle over a flat-screen TV. The legal dispute is not for custody; it is for rightful ownership.

  1. Your legal method will depend on whether there is a divorce or just a breakup. 

If you and your ex are fighting over a shared pet during a divorce, the pet's future will be determined in the divorce proceedings along with the rest of your personal possessions. The court will first classify the pet as marital or separate property, as it would any other item of property. The court may then consider, however, when making the ultimate decision of to whom to award the pet, who would best care for the pet. The judge will consider a variety of factors (discussed below). Increasingly, judges have also awarded joint custody of pets. 

If you and your ex are fighting over a shared pet during a breakup, but not a divorce, the matter becomes more complicated. In general, although there are some exceptions, you would not take legal action until or unless your ex physically takes the pet from you without your permission. In this case, you would have to sue your ex for the pet under a property-recovery legal theory, such as replevin. (See also this). The presiding judge would most likely consider some of the same factors as a divorce court judge.

  1. The judge will consider the extent of your relationship with the pet.

In determining who will take home the pet, judges will consider the specific facts of the case. In other words, it is almost always impossible to predict the outcome of a certain situation. However, the following factors will likely be considered:

  • Did the pet belong to one party before the relationship?
  • Who bought/adopted the pet in the first place?
  • Who's the pet's primary caretaker?
  • Who pays for the vet bills?
  • Who buys the food, toys, etc. for the pet?
  • Who spends more time with the pet?
  • Who takes the pet to the vet, grooming, etc.?
  • Who has more space/time for the pet going forward?
  • Who has custody of the children?

The last bullet point, while surprising, is a matter of practicality. Oftentimes, according to family law attorney Jacqueline Newman, "the dog follows the kids."

What Can You Do Now to Protect Your Pet?

  1. While you are still on good terms:

The best thing you can do, preemptively, is to enter into a pet "prenup" agreement with your significant other, while you are still on good terms. (A prenup is actually a misnomer here, because the contract does not have to relate to marriage; rather, you can enter into an enforceable written agreement with your partner regardless of marital status). 

The factors in the bullet list above will be largely irrelevant if you have a written agreement regarding who will keep the pet in the event of a breakup. The court will honor an enforceable written agreement. 

  1. If you think a breakup is impending:

Set yourself up as the primary caretaker of the pet. Spend as much time with it as you can, take it to the vet, to the store, or on walks. Use your money (checks or credit, so there is a record) to buy the pet its necessities. Be knowledgeable about the pet's medical conditions. The longer you do this before the breakup the better. Document everything. 

  1. If the breakup has already happened:

If you have already broken up and are actively fighting over the pet, monopolizing the pet's time and showering it with gifts will look like a strategic maneuver. The most important thing to do at this point is to gather evidence: receipts, documentation, and records showing that you paid for the pet, that you bought its food, that you registered for its license, etc. If you have been the primary caretaker dealing with the veterinarian, you could also consider asking the vet for an affidavit stating that all of his or her dealings were with you. The same principle goes for a dog walker or obedience trainer. The key here is that you want to establish evidence — beyond just your words — that the factors listed above should weigh in your favor. You could also consider submitting evidence showing your capability to take care of the pet going forward. For example, if post-breakup you are moving into a larger place with a yard, bring the court some evidence of that. 

The Pet's Best Interest

Regardless of how acrimonious your breakup is, let us hope that neither you nor your ex are trying to use your pet as a bargaining chip or pawn for revenge. The best thing you can do is consider the best interests of your pet.  

The law is increasingly aligned with this. Although pets are technically property under the law, judges have increasingly considered the pet's best interest in deciding who keeps it. In Hamet v. Baker (Vt. Apr. 25, 2014), for example, from the Vermont Supreme Court, the court essentially endorses a “best interests of the dog” standard, much like the best interests of the child standard used in custody cases.

This court's opinion reflects an important principle. If you really love your pet, you will have to seriously consider — with as little bias as possible — whether you, or your ex, will offer it the better home.

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Disclaimer: This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this blog or any of the e-mail links contained within the site do not create an attorney-client relationship between the author and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of any law firm or Psychology Today.

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