It happened. Jack and Jill have split up. The odds were never in their favor when even the divorce rate is 50%, so there was always reason for them to prepare for the worst.
They had considered an agreement when they adopted to determine what happened to their precious dog Fluffy in the event of a breakup, but they never followed through with it. It might have prevented a lot of unnecessary heartache and fighting, but now they are both wondering who might get the dog if they can’t agree.
Both Jack and Jill think they are the better dog parent. While they might assume some Judge Soleman might see who the dog goes to in order to award custody, many judges may not even consider what is in the “best interest” of the animal upon a couple’s separation. It is not always the case that pets will be given a special evaluation. In Colorado, and many other places, the courts look at animals like property, no different than a sofa or a chair. When a dispute arises about the ownership of property between non-married couples, the courts generally look to see who owns that piece of property.
However, the issue of who owns an animal can be a bit more complicated for a court to decide than who owns furniture. Courts are more frequently recognizing pets as a special class of property and should be afforded more consideration than an item of furniture, but not quite the full-blown analysis that child custody deserves. As more couples commit to raising pets over the course of their relationship, courts must recognize that pets are valuable and important enough to warrant thoughtful consideration in a custody dispute. A television can be replaced; Fluffy can’t.
When a court is evaluating ownership of a pet, it weighs a variety of factors. The weight that a court will give to each factor will vary, but in considering the ownership of animal a court will ask:
· Who paid for the animal originally (either purchase or adoption fee)?
· Whose name is on the microchip (if there is one) registration?
· Whose name is on the animal license (if such municipal, county, or state licenses are required or available)?
· Was the animal intended to be owned by a particular person (if, for instance, the animal was a gift)?
· What name or phone number do the animal’s tags reference?
· Who takes care of the animal (who feeds Fluffy, takes Fluffy on walks, plays with Fluffy, takes Fluffy to the vet, etc.)?
· Who pays for expenses associated with ownership of the animal (pays for food, vet bills, toys, etc.)?
· Who spends more time with the animal?
Some of these factors will often provide better evidence of ownership than some of the other factors. For example, one partner could be financially responsible and even be listed on licensing documents, but still be found not be the true owner or intended owner. Courts may vary in their judgment.
While some courts may look at the “best interests” of Fluffy, those examinations may come back to the same analysis that the court used to prove ownership. This makes sense as who takes care of the pet regularly not only shows ownership but shows that custody of the animal by that person is what is best.
Most likely Jack or Jill will end up with Fluffy temporarily while discussion of custody continues, one of them will refuse to give Fluffy back and the other aggrieved partner will either suffer the loss or need a lawyer to bring a lawsuit.
If you are currently splitting up with your significant other and pet custody is being disputed call us today to set up a consultation.
Look for more on what a custody lawsuit entails in the next part of our Fluffy series.
Jack and Jill should have made a pet custody arrangement to set the record straight before this issue arose. As a legally binding contract, these documents can be simple or complex, ranging from clear statements that one person exclusively owns Fluffy to creating visitation arrangements. Owning and caring for a pet together as a couple is a big step in a relationship and brings another life into the mix. While it may be unpleasant to discuss the fact that a relationship may fail, creating a safety net for Fluffy while both pet parents are thinking clearly is a win-win for both Fluffy and the couple.
If you are interested in creating a pet custody arrangement and preventing complex and expensive litigation to keep your beloved pet, reach out to us to set up a consultation.