Pet Custody Rights in California

On September 27, 2018, Governor Jerry Brown signed into law a new section of the Family Code (FL 2605) that better protects the best interest of the family pet in a divorce or legal separation. 

 

Until 2018, the family pet was considered personal property, and therefore, subject to the laws that controls personal property division in a divorce or legal separation.

Essentially, this meant, that prior to 2018, the court would assign ownership of the family pet to one spouse if the spouses could not agree on which person would retain ownership of the family pet. The spouse who was not assigned the family pet would be granted an offset, if any, equal to the value of the community property asset (the pet's economic value) and the pet's best interest was not factored in the court's decision.

Note: Prior to 2018, a family pet was considered a community property “asset,” not a community property “debt.” Also, prior to 2018, if more than one family pet was owned prior to divorce, than the court would usually split the number of pets between spouses as best as possible. This meant that many animals were separated during divorce or legal separation prior to 2018.

As stated, under the new law, a family pet is still considered personal property, but now divorce court judges may consider the best interest of the family pet when deciding which former spouse should be allowed to retain physical custody of the family pet. The value of the community property family pet may still be offset by a grant of other community property of equal value, if any, to the opposing party. Also, the debt associated with a family pet is now usually assigned to the spouse who receives the pet; however, the court has the power to assign debts associated with a family pet to the spouse who is not granted the family pet (i.e. vet bills, dog medicine, grooming, food, etc.).

Who Gets the Family Pet in a Divorce?

Before a judge makes Pet custody or visitation orders in a divorce or legal separation case the judge must evaluate several factors, including: 1) whether the family is community or separate property, 2) the pet’s best interest, and 3) whether the pet’s best interest conflicts with a child’s best interest.

Community or Separate Property

Generally speaking, community property is defined as an asset that is acquired during marriage by either spouse; separate property is defined as an asset that is acquired before marriage, after separation, or as a gift or inheritance during the marriage.

The new law only applies to a community property family pet. If a family pet is acquired before marriage, after the spouses separate, or as a gift, the family pet is considered the separate property of the acquiring spouse.

For example, if wife owns a dog before marriage, and her dog becomes a family pet during marriage, then wife will be assigned ownership of her dog after marriage or as part of a legal separation. The same is true if wife receives her dog as a separate property gift during marriage.

Per the new law, if the family pet is classified as community property, which means that the family pet was acquired during marriage and without separate property interest, then the family pet’s economic value is subject to equal division among the two divorcing spouses, but the spouse who retains physical custody of the family pet depends on what physical custody status is considered to be in the family pet’s best interest.

 

This means that the spouse who does not receive physical custody of the family pet should be awarded and offset of community property, if any, sufficient to offset the value of the family pet.

Note: The value of a community property pet is based on the pet’s age, abilities, health, breed, purity, usefulness, replacement value, and more.

No Offset for Utility Animals: A community property animal that is not considered a family pet will not likely be subject to a community property offset value.

For example, a guide dog is not a community property “pet.” A guide dog’s primary purpose is to assist a person with limited eyesight to navigate his or her daily activities. The fact that a guide dog might also be considered a family pet by members of the guide dog’s home does not serve to reclassify the guide dog as a family pet. Therefore, at divorce or legal separation, a person’s guide dog will be assigned to the person who requires the use of the guide dog, and the family law court will not likely grant a community property offset value to the person who is not assigned the guide dog.

No Offset for Breeding Animals: A breeding animal is an animal whose primary purpose is to create valuable offspring to be sold at market. The fact that a breeding animal might also be considered a family pet will not be sufficient to reclassify the animal as such. Therefore, a community property breeding animal may be granted to one spouse or the other without consideration for the animal’s best interest. Also, the court does not have to provide an offset of community property after granting a breeding animal to one spouse over the other because a breeding animal is similar to a tool necessary for employment.

For example, if wife breeds dogs as her primary source of income, and husband claims a community property interest in the breeding dogs at divorce or legal separation, then the family law court may assign ownership of the breeding dogs to wife without granting an offset of community property to husband.

Note: Because community property breeding animals may be assigned to either spouse as community property assets, and without concern as the best interest of the animal, there is likely to be heavy litigation between the spouses at trial. The issues at trial will likely surround several issues: whether or not the animal should be classified as a breeding animal (i.e. more of a family pet than a breeding animal), the value of the breeding, which spouse is better equipped to make the community property asset monetarily valuable, and more. Also, if a spouse claims that an animal is primarily used for breeding and monetary gain, then the issues of calculating child support and/or spousal support (alimony) will likely be affected.

No Community Property Offset for Guard Dogs: If a community property dog’s primary purpose is to secure property, as opposed to being a family pet, then there is no offset of community property when the guard dog is assigned to one spouse over the other. The fact that a guard dog is also considered a family pet to the owners of the guard dog does not reclassify the dog’s status as a community property asset subject to equal division at divorce or legal separation.

Also, the best interest of a guard dog is not factored into an analysis of who keeps physical custody of the guard dog. Of course, this fact could will generally create more litigation between the spouses (i.e. whether or not the dog is primarily used as a guard dog, the value of the guard dog’s service to the overall community property value, which spouse needs the guard dog, whether the guard dog is associated with a business asset, and more.

 

No Offset for Farm Animals: An animal that is primarily used for farming in not considered a family pet. Obviously, some farm animals, such as sheep herding dogs and roosters, are considered family pets by their respective owners. Nevertheless, if the farm animal’s primary role is to act as a farm animal (i.e. cattle, sheep, goats, horses, pigs, chicken, sheep dog, etc.), then the law of separate and community property applies and pet custody concerns are not factored in determining which spouse keeps the animal(s) at divorce or legal separation.

However, similar to the guard dog analysis above, the family law judge does not have to grant an off-set of community property to the spouse who was not granted an interest in the community property farm animal. This is because the farm animal is similar to the tools used for employment. Of course, the person who is not granted the farm animal could make a claim as to its monetary value when calculating child support and/or spousal support (alimony).

Note: A farm animal is usually associated with a person's employment on a farm as opposed to the overall value of a farm; therefore, the family law judge does not have to provide an offset of community property (similar to guide dog analysis above).

The Best Interest of the Dog

When determining what custody and/or visitation orders are in the best interest of the community property family pet, the court may look to any relevant evidence, including:

  • Who takes care of the family pet: bathes, grooms, walks, cleans up after, takes to vet, plays with, trains, sleeps with, etc.),

  • Who can afford the family pet: dog tags, registration fee, vet bills, food, supplies, training, toys, boarding,

  • Who needs the pet: service animal, protection (guard or watch dog for a business), emotional ties to the dog, comfort animal, workout pal, source of income (breeding dog, horse, etc.),

  • How a pet enters a family: rescue dog, purchase, offspring (progeny) of a separate property dog, who found the animal, service animal, gift, etc.

  • The pet's best interest: housing requirements (dog house, barn, etc.), available yard or Dog Park, emotional ties to other animals in the home, companionship (dog not home alone all day), transportation needs, the presence or absence of animal abuse or neglect,

  • Child's best interest: Whether separating the dog from a child would infringe on the best interest of the child, and more.

Note: Similar to child custody, a judge may make any custody and visitation orders that are in the pet's best interest, including joint or sole custody. Joint custody means the dog’s owners make important legal decisions for the dog together (jointly), such as end of life decisions, vet choices, boarding choices, etc. Sole custody means that only one of the dog’s owners makes important legal decisions for the dog (solely). Pet visitation does not have to be equal.

Evidence Issues: Evidence used to establish that a pet is community or separate property is also used in evaluating pet custody and/or pet visitation orders that would be in the best interest of the pet. Common evidence used in pet custody and/or pet visitation cases includes: adoption papers, declarations, vet testimony, dog tag license records, vet shot records, animal surgery records, pictures and/or video of the family pet, animal purchase receipt, registration receipt, pet store receipts, training class receipts, lease with named pets to show ownership, neighbors' testimony, etc.

 

Prenuptial Agreement & Pet Custody

Pet ownership and/or Pet custody issues may be addressed before, during, or even after marriage in a prenuptial agreement (prenup), postnuptial agreement (inter-marital), or marital settlement agreement (post-marital) respectively. Prenups and postnuptial agreements provide for the predetermined division of community and separate property assets, including a family pet, in the event of a divorce or legal separation.

Mediation of Pet Custody

Mandatory family court mediation is an attempt to resolve family law issues, such as community property division, child custody, child visitation, etc., before those issues are disputed in front of a family law judge. A pet's custody and visitation may also be mediated. Mediation is not mandatory for undisputed issues.

For example, dog custody and/or dog visitation issues may be dealt with in mandatory mediation, so long as dog custody and/or dog visitation is not the only disputed issue. However, if the spouses can agree, the issue of dog custody, visitation, and even financial support for a dog, may be handled privately between the parties through an oral or written agreement.

Restraining Order for Your Dog

Judges may grant restraining orders in favor of dogs. Restraining orders may include: exclusive care and/or possession of a family pet (i.e. dog, cat, horse, etc.), stay away orders (minimum distance orders), and more.

 

Pet restraining orders may be granted on an emergency basis (ex parte) when there is imminent harm to a family pet and the restraining order is necessary to protect against that harm. Imminent harm includes animal abuse, animal neglect, and/or threats to harm a pet or transfer a pet without consent.

Note: In practice, a family law judge will not necessarily hear an ex parte (emergency) request to protect a community property animal. However, if the request is made as part of a domestic violence restraining order (DVRO) request that is intended to protect a person domestically related to the respondent, or a human family member of the DVRO petitioner, then the court may make orders respecting the protection of the family pet.

Inherently Dangerous Animals

A family law court is not likely to make orders respecting the custody of inherently dangerous animals. This is because an inherently dangerous animal is not a family pet by definition. Theoretically, a family law judge could treat an inherently dangerous animal as a community property asset to be divided according to community property law; however, family law judges will likely be hesitant to assign a community property or separate property ownership of any animal that is inherently dangerous for several reasons: 1) the lawfulness of the owner’s purported interest should not be validated by a family court judge, and 2) the danger that an inherently dangerous animal poses to the community and the party’s own family members.

Note: An inherently dangerous animal should include deadly animals that are normally found only in the wild or in a zoo (i.e. lion, tiger, deadly snakes, deadly sea animals, etc.).

Vicious Dogs & Pet Custody: A dog that has been trained, by one of the spouses, to fight other dogs (dog fighting) may not be granted custody of the dog on the sole purpose of the dog's need to continue training and/or the spouses ability to train the dog as a fighting dog. On the other hand, if a dog is known to be vicious, that fact may be considered when it comes to which spouses should be granted custody of the dog (i.e. ability to safely house the dog, danger posed to any minor children, etc.).

Note: Training dogs to fight other dogs is a crime in California (PC 399.5). 

Modification of Pet Custody

An order for pet custody, pet visitation, and/or pet support, may be modified by the family law judge after the initial order was made. This law is similar to child custody modification in that a change of circumstance that justifies a change in pet custody orders is required.

For example, if wife is granted the community property family dog after a divorce, but wife later abuses the dog and is criminally convicted of abusing the dog, then husband may seek a modification of the court’s prior order and request new orders that grant him sole custody of the dog.

To learn more about who gets the family pet in a divorce or legal separation, contact our family law attorneys today for a free consultation. Our family law firm is a full-service law firm that handles all family law matters, including pet custody, child custody, fathers’ rights, CPS defense, domestic violence restraining orders (DVRO), support (child and/or spousal), guardianship, annulment, CACI hearings, and more. Call today!

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