Pet “Custody” in Dissolution Proceedings
Family cases can be extremely emotional for many reasons. One of the issues that can contribute to a party’s angst during a dissolution case is the fate of a family pet. Effective January 1, 2019, the California Family Code addresses the issue of a “pet animal”[i] head on.
Section 2605 of the Family Code provides, in part, that a 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[ii] for the pet animal.”[iii] Further, “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.”[iv] Meaning, during the pendency of a divorce action (prior to a final order re the pet), a court may make orders regarding the care of the pet.
If during the course of their divorce proceedings the parties cannot reach an agreement re the custody of a pet and end up litigating the issue, a court, at the request of a party in the divorce action, may assign sole or joint ownership of a pet taking into consideration the care of the animal.[v] In so doing, general family law rules still apply. Thus, which party to a divorce case ultimately receives the pet in the division of property will depend in part on whether the pet is community or separate property.
A court must divide the community estate of the parties equally.[vi] Property acquired by a married person during the marriage while domiciled in California is community property.[vii] So, if the pet is community property, it will have to be “divided,” or shared, equally.
On the other hand, if a pet is the separate property of one of the spouse’s, that party would be entitled to possession of the animal. Separate property of a married person includes: (1) All property owned by the person before marriage; (2) All property acquired by the person after marriage by gift, bequest, devise, or descent; (3) The rents, issues, and profits of the spouse’s separate property.[viii] So, if one spouse acquired a pet through any of these above means, the pet is the separate property of that spouse.
However, the Family Code allows the court to consider the “care” of the pet. Meaning, division of an animal will differ in some respects from the division of say a piece of furniture. The court would not look into whether or not a spouse cared well for a piece of furniture. The Family Code does authorize, however, the court to consider the care of an animal subject to its jurisdiction in a dissolution matter.
In sum, while the issue of pet ownership can strike a nerve with parties to a divorce because of the emotional strings attached to pets, the “division” of a pet will follow the same rules as the division of all other property—but with an eye toward the “care” of the pet. First, the parties will have to ascertain whether the pet is community or separate property. If the dog is separate property, it presumably belongs to the spouse who acquired the pet as his/her separate property. If the dog is found to be community property, the parties presumably will have to figure out how they want to share the pet “equally,” lest the court decides so for them. But, all of that said, final orders regarding the fate of a pet will now depend in part on the “care” of the animal.
[i] Family Code § 2605(c)(2).
[ii] “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. Family Code § 2605 (c)(1).
[iii] Family Code § 2605(a).
[iv] Family Code § 2605(a).
[v] Family Code § 2605(b).
[vi] Family Code § 2550.
[vii] Family Code § 760.
[viii] Family Code § 770.