Family Matters

Custody of Rover? A Pet Custody Bill is Pending in the Pennsylvania Legislature

Under the current law, a pet is divided the same as your coffee table.  The dog or cat is awarded to one spouse; the value of the pet is the value the pet would sell for at a yard sale.  When dividing an asset in divorce, the asset is given a value and then granted to one party or the other. Assets that are easily divisible (like a bank account or retirement account) may be split between the parties using a percentage.  

Dealing with pets in these strict settings is difficult.  Pets are not easily divisible (think King Solomon), one spouse is awarded the pet and that is that.  No visits from the other spouse. Some courts refuse to make a determination about who gets the pet at all.  Also, pets are not usually worth much. Have you tried to sell your pet at a garage sale? Unless the pet is a show dog or specially trained, the value is probably minimal.  This is why the analogy usually uses a coffee table or other small item of furniture, and not a more significant asset like a house or pension. Many divorcing spouses are upset when they learn of the current law.  

Custody Battle?

The trend in laws across the nation is starting to move toward more of a custody-like analysis with pets.  In 2017, Alaska became the first state to require that a court consider the well-being of a pet. Illinois and California followed suit in passing similar bills in 2018.  Will Pennsylvania be next?

Representative Kulik introduced HB 1432 in the Pennsylvanian House of Representatives on May 8, 2019.  This bill would allow courts to make decisions about what is best for a pet and a family. The proposed legislation specifically states “The Commonwealth recognizes that companion animals are living beings that are generally regarded as cherished family members that offer their owners companionship, security and assistance. Companion animals occupy a special category of personal property which does not include inanimate personal property. Therefore, it is the policy of the Commonwealth that special consideration be extended to companion animals when the division of personal property is planned or determined”.  This language is important as it appears to create a public policy around the importance of pets. Public policy can only be created by the legislature, and not by the judiciary. This public policy language would help address the issues with enforcement of pet custody agreements discuss below.

Policy for Your Pet

In determining the division of pets the court will look at six specific factors which are:

“(1) Whether the companion animal was acquired prior to or during the marriage.

(2)  The basic daily needs of the companion animal.

(3)  The party who generally facilitates veterinary care for the companion animal.

(4)  The party who generally provides the companion animal with social interaction.

(5)  The party who generally ensures the compliance with State and local regulations regarding the companion animal.

(6) The party who provides the greater ability to financially support the companion animal.”

See H.B. 1432.

Considering whether the animal was acquired prior to marriage mirrors the language on other marital assets.  An asset acquired prior to marriage is usually not marital, unless it has been converted to marital. I am sure there will be creative arguments about how the ownership of pets can be converted to marital.  How a dog license is filled out, or a vet form about ownership, could be considered in the first factor.

Factors two through five consider the well-being of the pet more generally.  The court would look at who is actually caring for the pet and bonded with the pet.  

The last factor is financial.  The legislation is making sure the person who is awarded the pet has the ability to care for the pet.  

This analysis is more akin to a custody analysis than to the division of an asset.  The other item of personal property that has received a differentiated analysis for division is pre-embryos.  In Reber v. Reiss, the superior court permitted a totality of the circumstances review of pre-embryos when being divided pursuant to divorce.  The court left open the possibility of contract analysis for division. Also, there is no determination of whether or not pre-embryos would be considered property if the spouses had not stipulated they were property. 

Contracting the Divison of Pets

House Bill 1432 also addresses the ability to contract the division of pets.  Currently, spouses can contract pet divorce disputes. Spouses often turn to mediation, collaborative law, or other alternative dispute resolution processes to create agreements about the custody of a pet and the expenses of a pet.  The problem is that in 2002 in DeSanctis v. Pritchard, the superior court upheld a trial court’s decision not to enforce a pet agreement.  The parties had given custody of Barney the dog to the wife and husband had visitation.  When Wife moved farther away, Husband sued for custody of the dog. The trial court refused to enforce the agreement.  This is often why mediated agreements include a provision that pet custody issues go back to a mediator before going to court.  If you require the person to go back to mediation, you have a better chance of working something out that both spouses can accept.  

If House Bill 1432 is turned into law, the right to contract about pets will be codified.  This means the trial court would be expected to enforce pet contract terms. The bill allows the contract to include periods of physical possession of the pet and financial responsibility.  The bill does not specify if the enforcement provision will apply to pet contracts entered into previously, but the inclusion of policy language would make it easier to enforce prior pet agreements.  

The financial responsibility portion can be very important.  If two people are going to share a pet, then we need to know who is paying for vet bills, kennel time, medications, and food.  

If you feel strongly about how pets should be treated during divorce, you should call your state.  It will be interesting to see if this bill becomes a law. If it does become law, it will also be interesting to see how the court handles the division of companion animals and enforcement of pet custody agreements.  

For questions or concerns about divorce, custody, and making the right choice for your pet, please contact Obermayer partner Julie Colton. She can be reached at julie.colton@obermayer.com.