Custody of Pets

A Harsh Result

For pet lovers all over the world, animals are critically important in their lives. People mourn animals when they are lost; they rely upon them to help get through an illness; and they love them dearly, often as much as their own children. Pets are loyal, loving and faithful. Have you seen the pictures of the dog lying on the grave of his master? How can your pet, Barney, suddenly be the same as a table? As a result of DeSanctis v. Pritchard, Pennsylvania now has the “Barney rule.” You cannot enforce an agreement on dog custody. The last one to have the dog is the one who keeps the dog.

Pa. C.S.A. Section 3502 sets the guidelines for distribution of property as opposed to custody or visitation. Since a dog or cat has been declared to be similar to a table or lamp, unfortunately, that is the section to which the court will look when there is a conflict over pet “ownership.” It is not that the courts are unwilling to consider the custody and visitation arrangements, but, unfortunately, the legislature has not given the courts authority to do so. Dogs are personal property as per 3 P.S. Section 459-60.

While other statutory law exists attributing a lesser status to animals, it is not directly related to custody proceedings. For example, 20 Pa.C.S.A. Section 7738(b) says “a person having an interest in the welfare of an animal may request the court to appoint a person to enforce (a deceased owner's) trust (caring for the animal) or to remove a person appointed.” This, however, has nothing to do with the potential custody of these animals. It is only the goodwill of the parties who make the agreement that will enforce this custodial arrangement. Perhaps people should always have two animals so that if they split, they each get one.

In family law, the courts will use 23 Pa.C.S.A. Section 3502, which provides for equitable distribution of marital property. While none of the subsections carve out a special status for companion animals, this is the only place that a distribution can be found. Until the legislature provides a law acknowledging the importance of companion animals, and the significance of these animals to their owners, no such protection will be found.

The Law in Other States

Other states take pretty much the same approach. In Iowa for example, In re Marriage of Stewart , the court found that the dog was personal property. In Minnesota's In re Marriage of Prat , the court agreed that child custody statutes are inapplicable to pets, although, if there is mistreatment, the trial court can award the dog to the non-abusing spouse.

In Florida, Bennett v. Bennett stated, “While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property. There is no authority that provides for a trial court to grant custody or visitation pertaining to personal property.” Since the courts are overwhelmed with the supervision of custody for children, they really do not have the time to take the same responsibility for pets.

There are, however, a few jurisdictions that have shown more respect for pets. In New Jersey, in the case of Houseman v. Dare , the court did order shared custody of a pet. The court in that case found that pets are not mere personal property but a special category of property. Parties in that case had an oral agreement to share custody of their pet and the court awarded specific performance of that agreement. The parties spent alternating five-week stretches with their dog. And that was enforced by the court.

New York also has taken the best interest of the pet into consideration, including in one case involving custody of a cat named Lovey. In Raymond v. Raymond , the court ' cognizant of the “cherished” status accorded to pets in our society, strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily ' stated that, on the record presented, “We think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost 10 years old, remains where he has lived, prospered, loved and been loved for the past four years.”

Handling of Pets in a Pennsylvania Divorce

The Animal Legal Defense fund is an organization that files briefs in pet custody cases. Unfortunately, it, too, acknowledges that it is only where there is abuse of the animal that the courts will get involved in most states. Since there is no anti-cruelty for the “table” there is nothing to protect pets in Pennsylvania.

How then, in a divorce case, should the issue of pets be handled?

It is clear that not even pet custody agreements will be enforced in Pennsylvania. While any pet lover knows that a pet is not a piece of furniture but, rather, is beloved and irreplaceable, it is not likely that the court will enforce any agreement until such time as the legislature takes action. It may simply be advisable to have the client hold on to the pet and not share it. Once the pet is shared and the other person gets hold of it, your client may never see it again. It is time for the Legislature to take action. Until they do, unfortunately, the answer is, hold on to your dog or cat with a leash. It may be the only way to keep them.

Lynne Z. Gold-Bikin, a member of this newsletter's Board of Editors, is a family law attorney and a partner at Weber Gallagher. Winner of numerous awards, she handles divorce and custody matters. This article also appeared in Pennsylvania Law Weekly, an ALM sibling publication of this newsletter.