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How Is Pet Custody Determined?

Wednesday, August 31, 2016

Unlike Child Custody, the Answer is Predetermined

Many pet owners view their pets as part of the family, perhaps even as precious as children. When pet owners are involved in divorce proceedings, they may wonder, who gets the pet? While Florida law is clear regarding parental rights and responsibilities regarding minors, custody laws pertaining to children do not apply to pets. In the eyes of the law, pets are considered to be personal property, not unlike a piece of furniture or a painting. Like other pieces of personal property, if the property is marital, it is subject to equitable distribution pursuant to Florida Statute 61.075. If the property is non-marital, it is set aside to the spouse who acquired it as a non-marital asset.

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How Does it Work for Debra, Joe and Buddy?

  • EXAMPLE 1. Debra got her dog Buddy from the local shelter when she was a teenager, well prior to marrying Joe. She retained the documents establishing her ownership of Buddy, and all of Buddy's veterinary records have only Debra's name on them. In this scenario, it is reasonable to conclude that Buddy is Debra's non-marital asset, and should therefore remain in her possession in the event of divorce.

  • EXAMPLE 2. Debra and Joe obtained Buddy after they got married from a purveyor specializing in his particular breed. They used their joint checking account to purchase Buddy, and continued to share the expenses of caring for Buddy throughout the marriage. Legally, Buddy is marital property and subject to equitable distribution.

Obviously, a pet cannot literally be distributed like a checking account or 401K. However, a pet can be assigned a value like any other piece of personal property, and arguments can be made as to why the pet should remain in the possession of one spouse or the other. Although Florida courts do not view pet custody as they do child custody, the law does require owners to provide proper care for the domestic animals they have chosen to acquire.

'Possession' and 'Property'

Note that the words "possession" and "property" are used throughout this discussion, rather than the word "custody." This is because Florida law, and indeed the law in virtually all states, does not provide for the concept of pet custody. Neither does it provide for pet visitation or sharing arrangements. This matter is well-settled in Florida case law. In Bennett v. Bennett, a 1995 appellate case, the First District Court of Appeal made the following observation:

"While several states have given family pets special status within dissolution proceedings... we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems... Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals."

In view of the foregoing, responsible pet owners going through a divorce proceeding should not rely on the court to make appropriate arrangements for the residency and care of pets. In the event of a dispute as to ownership, pet owners can work with counsel to negotiate a mutually acceptable solution for the ultimate disposition of a pet.

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