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  • Writer's pictureJames Chau

In The Best Interests of The Pets and Possession Control

It is often said that pets are not just pets, they are members of the family and often treated as another child within the family unit. When a couple divorces, the disposition of the family pets are often given just as much consideration as other issues, such as child custody and support. While Fido isn’t going to be a variable in the equation to determine the amount of child support that is paid, the question of where the pets will live is often just as emotional and difficult to resolve as any other aspect of the divorce.

California is a state that takes domestic violence very seriously. The legislature found that abuse victims might be reluctant to leave an abusive situation, knowing that the care and control of their animals may not be protected. As a result, California enacted laws such as Family Code §6320, which allows the court to issue orders for a party to have exclusive control of animals in domestic violence situations.

Recognizing that litigants often fought over how to divide up pets which are considered “chattel” or property under the law, the California legislature enacted Family Code §2605 on January 1, 2019. Prior to a law that went into effect on January 1st, 2019, pets were considered simply property without any other considerations. With the new law, the courts deal with custody of the family pets in a similar way they deal with child custody, looking towards the care of the pet animal as a factor in the award. If the divorcing couple cannot decide on their own, the judge on the case will look at things like who is in the best position to care for the pet. Things that are taken into consideration are who feeds the pet, who takes the dog for daily walks, protects them, and care for their health and well-being, including providing appropriate veterinary care for the pet.

As with other aspects of a divorce, either party can submit a request for custody of the family pet, and a judge may grant sole or joint custody, just as with a child. The court will determine what is in the interest of the pet’s care.

People who do not have pets and have never had any pets may believe this is over the top causing more trouble than is necessary. For those who have had pets their entire lives, pets are not property. They are living, breathing beings who develop deep ties to their family and have complex emotional reactions to the presence or absence of family members. For families that have pets, you will be hard-pressed to find anyone who believes their pets are possessions as opposed to members of the family worthy of the time and expense to ensure they are properly cared for once the divorce is finalized.

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