Pet custody can be a deal breaker

By: Marie E. Matyjaszek

Law Office of Robert Matyjaszek

Most days I prefer the company of my pets over humans - let's face it, they don't talk back and love you unconditionally.

It's not surprising that pet products and care are fast growing industries, especially since people are waiting longer to get married and have children - their pets are becoming increasingly important and considered a part of their family.

As a divorce attorney, I am seeing more parties wanting the ownership of their pets specified in the divorce judgment, and several clients have considered the "custody" of their pets to be a deal-breaker.

It is not uncommon for my client to make it clear in the initial meeting that he can't have Snowball or she doesn't deserve to have his Buddy.

As a huge animal lover and pet owner myself, I know what it means to have that ball of fur greet you after a lousy day at work or a fight with your husband over his extension of time for your diamond upgrade.

The current law on awarding pets in a divorce is simple - they are considered chattel, divisible like all other types of property.

If the dog was yours before the marriage, then chances are that he is premarital and yours to keep. Receiving the pet as a gift also helps your case to retain him and all of the chewed furniture too.

However, there is a push to treat pets as a separate category called "living property."

While in school at Michigan State University College of Law, I took several classes taught by Professor David Favre, who continues to educate other would-be lawyers at MSU.

Professor Favre defined the term "living property" in one of his papers as "physical, movable living objects - not human - that have an inherent self-interest in their continued well-being and existence."

Using this train of thought would encourage the courts to look at the pet as more than just property, a living being whose best interests should be considered before awarding him to one party or the other.

Who walked the dog the most and took her to the vet when she was limping? Who cleaned that nasty cat litterbox without complaint? Does the animal seem to favor one "parent" over the other?

I think it's important for the courts to view animals beyond property because the treatment that they receive is critical to their well-being and health. You can't randomly award a dog to one party just like you could settle the dispute over a television and expect it to have the same outcome - set it up in the new home and leave it for the owner to enjoy.

The courts should consider the emotional attachment of the pet to that particular owner, and the attachment of the owner to the pet.

Because there is no set case law defining the "best interests" of a pet like there is a child, I would advise amicable divorcing parties to try to come to an agreement on the animal on their own since the court doesn't have specific guidelines to follow.

I've seen divorces where the custody of the pets is effectively broken down into legal and physical custody, where both parties have to agree on operations, inform the other of vet appointments, and decide where the dog resides most of the time.

Parenting time is being set forth in judgments, specifying who gets to see the pet on what day and for what length of time. Monetary support for the animal, including regular needs such as food, vet care and toys, are being shared between the divorced couple at an increasing rate.

If you've always treated your pet as a member of your family, the courts should too. Parties will surely fight over who gets the beloved dog or cat, and in some divorces, Buddy may end up being awarded to one side or the other if they can't come to an agreement.

If that's the case, I'd advise the winner to avoid stepping on any flaming brown bag that appears on her doorstep - just pour water over it.

The author is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan. She can be reached at (517) 787-0351 or by emailing her at

Published: Thu, Apr 15, 2010