Fighting For Fido: Understanding Pet Custody in California

Community Property vs. Separate Property

California is a community property state. In community property states, all property acquired by either spouse during the marriage is presumed community property. This means each spouse has an undivided one-half interest in all community property.

Separate property, on the other hand, refers to property that is owned by one spouse alone and is not considered community property. This includes property that was owned by a spouse before marriage, property acquired after separation or before divorce, and property acquired by gift or inheritance during the marriage that was intended to be separate property.

The Best Interests Of The Pet Standard

If the pet was owned by one spouse prior to the marriage or was acquired as a gift or inheritance during the marriage, then that spouse is generally considered the sole owner of the pet. In such cases, the court will not typically consider the best interests of the pet or the emotional attachment of either spouse.

If the pet was acquired during the marriage and is considered community property, some judges may be willing to consider the best interests of the pet in custody disputes, particularly if the pet is a therapy or emotional support animal.

California was the third state to pass legislation providing guidance to courts regarding the interests, well-being, or care of companion animals in divorce proceedings. Effective January 1, 2019, California Family Code section 2605 provides:

(a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal.

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.

(c) For purposes of this section, the following definitions shall apply:

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Cal. Fam. Code § 2605

Factors Considered By Courts 

Courts may consider a variety of factors when deciding the “best interests of the pet,” including:

1. Primary Caregiver: Which party was the primary caregiver for the pet, including who was responsible for feeding, walking, grooming, and providing medical care for the pet.

2. Financial Ability: Which party has the financial ability to care for the pet, including who has the means to pay for food, veterinary bills, and other expenses associated with the pet’s care.

3. Living Situation: The physical living situation of each party, including the size and suitability of the living space for the pet

4. Emotional Attachment: The emotional attachment of each party to the pet, including any evidence of a special bond or relationship between the pet and one of the parties.

5. Other Factors: Any other factors relevant to the well-being of the pet.

It is important to note that no single factor is decisive in determining the best interests of the pet. Courts will evaluate each situation on a case-by-case basis, considering the unique circumstances and overall balance of these factors to arrive at a decision that promotes the pet’s well-being.

Tips For Establishing An Award Of Custody

If you are going through a divorce or custody dispute and want to keep your pet, there are several things you can do to improve your chances of success:

1. Document Your Pet’s Care: Keep detailed records of your pet’s care, including vet visits, medications, food and water intake, exercise routines, and any other relevant information. This can help demonstrate your level of involvement in your pet’s life and care.

2. Establish A Strong Bond With Your Pet: Spend quality time with your pet and engage in activities that strengthen your bond, such as playing, cuddling, or going for walks. This can help establish your pet’s attachment to you and demonstrate your ability to provide for their emotional well-being.

3. Provide A Stable Home Environment: Ensure that your home is a safe, comfortable, and stable environment for your pet. This includes providing adequate space, shelter, and exercise opportunities, as well as maintaining a consistent routine and minimizing disruptions.

4. Demonstrate Financial Responsibility: Show that you are financially capable of caring for your pet’s needs, including food, shelter, medical care, and other expenses. This can be demonstrated through income and expense records, receipts, and other financial documentation.

5. Consider Mediation: Mediation can be a helpful way to resolve custody disputes without going to court. A mediator can help you and your ex-partner come to a mutually acceptable agreement that takes into account your pet’s best interests.

6. Consult With An Attorney: Select a legal professional with experience in family law and a strong understanding of “the best interests of the pet” standard. Look for someone compassionate, communicative, and dedicated to achieving the best outcome for your pet.

Remember, the court’s priority in a pet custody dispute is the best interests of the pet. By demonstrating your ability to provide a stable and loving home for your pet, and working collaboratively with your ex-partner or spouse, you can improve your chances of keeping your pet.

Conclusion

Establishing custody of a pet can be a challenging and emotional process, particularly in the context of a divorce or custody dispute. While pets are generally considered property under the law, courts in California have begun to recognize that pets have a special status as companions and family members.

Understanding and navigating the community property laws and the “best interest of the pet” standard is crucial for partners or spouses involved in pet custody disputes. By familiarizing yourself with these concepts and taking proactive steps to address any concerns, you can effectively advocate for your pet’s well-being and ensure that their needs are met throughout the legal process. By working collaboratively with legal professionals and prioritizing your pet’s best interests, you can increase your chances of successfully establishing custody and maintaining a meaningful relationship with your beloved animal companion.