Pet custody cases should be taken seriously because people consider them like their children. Family lawyers should understand this sensitivity.
By Peter Walzer, Family Lawyer
The law is not so generous in California. Pets are considered personal property, or “chattel”, and this is difficult for parties to accept. Just as the court must decide who to award the personal property to, they must do the same with pets.
The parties can be creative in giving one party “visitation”, but the courts may be unwilling to make and enforce such an order. On one occasion, I had a client who wanted custody of a kitten named April. It was the only sticking point in a difficult case. We resolved the issue allowing the spouse visitation – only to have the judge kick the judgment back because, as he asserted, he did not have jurisdiction to issue “pet custody” orders. We ultimately resolved the issue by having a “side agreement”. In another matter, the parties were fighting about a parrot. My client, being a “parrot psychologist” was awarded the parrot because presumably, she could communicate better with the parrot than the other owner.
People will spend considerable attorney fees on establishing that they should be the party that is to be awarded the dog or cat. Some people will produce “day in the life” videos showing their relationship with the pet. Obviously the pet itself cannot testify, but parties will try to establish that the pet is partial to one party or the other.
Pet abuse can be an issue in a pet “custody” case, just as child abuse is an issue in a custody case. California has recently amended its domestic violence statutes to grant to a petitioner “the exclusive care, possession, or control of any “animal” owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the “animal” and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the “animal” (Cal. Family Code 6320). Perhaps this statute is a preview of legislation to come where there is more focus on “pet custody.”
Peter M. Walzer is the founding partner of the Southern California law firm Walzer & Melcher LLP, focused exclusively on family law. He is a past president of the Southern California Chapter of the American Academy of Matrimonial Lawyers and is a former chair of the executive committee of the State Bar Family Law Section.