Are Pets Family or Community Property in Divorce Proceedings?

I recently learned my 16-year-old chihuahua, Ziggy, has cancer and dementia.  We don’t expect him to live for many more weeks.  He is family and we love him dearly.  This situation got me thinking about how parents of “fur babies” handle the division of a pet in divorce cases.  There are two ways of looking at the situation.  One is the pet is family and there should be custody and visitation orders.  The other is the pet is community property and one party or the other should take possession of the pet.

California Family Code Section 2605 addresses the care and ownership of a pet animal during dissolution or legal separation proceedings.  If asked to do so, the court will make an order for one party or the other to care for the pet during the court proceedings until final ownership is determined.  In deciding which party that will be, the court must consider who would provide better care for the pet, including but not limited to, “prevention of acts of harm or cruelty, provisions of food, water, veterinary care and safe and protected shelter.  Another way to look at it is the court is looking at “what is in the best interest of the pet”.  A consideration that is similar in some ways for child custody and visitation.

My first thought was why should the pet see both “parents”?  It’s an animal, it doesn’t care if it never sees the other owner.  Have you ever seen a pet respond to someone they haven’t seen in a long time?  I’m reminded of the commercials where you see the soldier coming home after months or years away in the service of our country.  The dog goes wild at seeing her walk through the door.  It is obvious the dog remembers and loves this person.  Or how our pets respond to us coming home from work after a long day gone.  Mine whine and cry, run in circles and basically go crazy happy when I get home. I would apply that to custody and visitation of the community pet.  The pet loves both parents and wants to see and spend time with each of them.  Having said that, if the pet was obtained before marriage by one party, it would be generally characterized as separate property.  Therefore, the person who obtained the pet will walk away from the dissolution with it without some alternative agreement.

Pets are also a topic in domestic violence situations where the pet is used in the mental and emotional abuse of the other party or children.  This can be done by physically harming the pet in front of the other family members as a threat to the humans involved.  The court will assign custody of the pet to the survivor pending the outcome of the case.  Be sure to include any harm inflicted on the pet by the abuser, it’s important information.

Well, I’m gonna go love on my puppy.