Emerging Trends - Pet Custody - Your Other Child
PET CUSTODY: YOUR Other CHILD
Many pet owners are as close to their pet as a parent to their
child. Further, pet owners often refer to themselves as the mother
or father of their pet who they adopted, not purchased. However
under Colorado law, pets are still characterized as an item of
personal property subject to “equitable division”.
In other words, in the midst of a highly contested divorce action,
the fate of a pet’s future residence may be as precarious
as the living room sofa.
For the most part, judges do not want to get involved in pet
disputes and will advise the parties that if they cannot agree
as to whom will get “custody” of the animal, they will
either need to sell the pet or find it a good home elsewhere. Some
judges however, are willing to consider what is in the pet’s “best
interest” when deciding which “parent” will ultimately
get custody of the animal. Thus, it’s important to know who
your judge is and whether or pet dispute are typically addressed
in that courtroom.
In evaluating what is in a pet’s best interest, a judge
will often compare the future living arrangements of both parties
and with whom the pet would be most comfortable. Thus in a custody
case involving a large dog, the party with an ample yard certainly
has an edge over the spouse who is moving into a high rise apartment.
A judge may also consider which party has the ability to spend
the most time with the animal and can afford the animal’s
day-to-day care, including veterinarian bills. Additionally, the
history of the parties’ participation in the day-to-day care
of the animal is critical. As such, a party can make a very persuasive
case for custody if during the marriage, s/he was the primary caretaker
of the pet and was responsible for such daily tasks as feeding,
grooming and exercising the animal.
One way to get around the pet custody battle is to plan ahead
by drafting a pet “ante-nuptial” agreement that spells
out how various issues will be resolved in the event that the parties
get divorced. A good agreement considers the following:
- Which party will get residential custody of the pet should
the parties separate or divorce?
- Will the other party have visitation
or “parenting time” with
- How much visitation? (Note; a detailed visitation
schedule may be a good idea)
- Who will be responsible for transporting
the animal for visitation?
- How will the parties allocate pet
expenses including food, grooming, kennel and veterinarian costs?
the parties will share joint decision making responsibility for
major medical issues. This should include whether euthanasia
is appropriate in the event that the animal is diagnosed with
a fatal illness or suffers a horrific accident.
- How will cremation or burial
expenses be allocated between the parties?
- And, yes, who will
keep the deceased pet’s ashes?
Should the parties find themselves involved in a dissolution without
a pet ante-nuptial agreement to fall back on and pet custody becomes
an issue, it is so important that they put aside their ill feelings
for one another and focus on what custody arrangement truly is
in the pet’s best interest. A party should never use a cherished
pet as a way of controlling, maintaining contact with or hurting
the other party. Pets are not emotional pawns! Even worse, some
perpetrators of domestic violence use cruelty to the pet as a way
to control another parent, or even a child. Please see
more information on domestic violence, and ways to protect oneself
in those situations.
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