SAN DIEGO, June 30, 2014 – Actress Melanie Griffith recently filed for divorce from her husband of 18 years, actor Antonio Banderas. Their youngest child, Stella, turns 18 in September. But it’s expected they will need to work out custody issues – for their three dogs, a terrier mix and two Lab/German Shepherd mix siblings they adopted from rescue group Ace of Hearts.
As with many trends including in family law, celebrities frequently lead the way.
Nearly three-quarters of U.S. households own pets. There are about 218 million pets in the United States, not counting several million pet fish. Americans spent approximately $61.4 billion in total on their pets in 2011. According to the Bureau of Labor Statistics. There are 70 million dogs and 74 million cats.
Compare this to the number of minor children in the U.S.: approximately the same number as cats alone, 74 million.
For many couples like Griffith and Banderas, their pets are considered family members. When a couple decides to get divorced, one of the big questions is who gets to keep the pets. The verdict can be heartbreaking for the person left without their beloved companion. So it isn’t surprising that pets can spark custody battles when couples divorce.
In a survey by the 1,600-member American Academy of Matrimonial Lawyers, a quarter of the attorneys who responded said pet custody cases had increased noticeably since 2001. There is no doubt such cases have grown steadily. The growth of same-sex divorces, civil unions and domestic partnership breakups that end up in court are among other reasons pet custody fights have become more common.
But pet “custody” isn’t at all the same as determining child custody. Laws governing pets consider them personal property, under human ownership and control. Court decisions are made to protect the interests of the owners, not the animals. With child custody, the best interests of the children prevail when it comes to custody, visitation, and support.
Courts can award a pet to one owner or the other in a dispute. A pet wouldn’t be treated any different than a computer or a piece of furniture, and couples don’t trade a sofa back and forth every week.
When children are involved in a divorce, many judges will keep the pets with the children. But when the pets ARE the children, it’s more complicated. Many courts won’t rule on pet ownership at all.
Because pets are becoming such a big part of the lives of so many people, some courts are beginning to change their approach and are willing to treat pets more like children. Courts will then consider the best interest of the pets in determining who gets custody of them, just as with children. Courts can award shared custody, visitation, and support payments to the owners.
But with most family courts still unwilling to go there, most pet owners need to work out a contract between themselves instead as part of their divorce settlements. As with so many aspects of a divorce, taking control and coming to an agreement about the decisions governing your own life are far better in most cases than letting a judge decide for you.
Even if the laws were to change to allow for broader considerations in determining pet custody, there are still unanswered questions. Are some species worthy of court consideration and protection? Should it just be dogs and cats? Exotic birds like parrots or macaws can live 50 or 60 years, so it’s hard to justify why a parrot shouldn’t be included.
What about expenses? Should one owner bear all the costs, or should the couple share costs as well as physical custody? How about medical decisions, especially end of life decisions? Who gets the final say? What if the pet itself generates income through breeding, competition, or entertaining?
There is great potential for changes in pet custody laws around the corner, but for now it’s best for couples to try and work out an arrangement they can both live with, and include it in any settlement agreement. For individuals bringing a pet into a marriage, a pre or postnuptial agreement may include provisions for ownership in the event of a breakup or divorce.
What’s certain is that society is increasingly accepting pets as members of the family rather than property or ornaments. People are no longer embarrassed about fighting for custody of pets. The day is sure to come when a Corgi is no longer in the same legal category as a car.
Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra. Fleischer can be reached via Google +
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