The Battle for Pet Custody

When separating from or divorcing a partner, things can get messy, even more so when it comes to dividing up shared property, a classification that, unfortunately, many courts still group pets under.

An abusive ex-partner may try to use these pets as yet another means to control a survivor. Some studies show that some 25 to 40 percent of survivors will stay with an abusive partner because they’re worried about their pet’s safety.

While some shelters accept pets, and other organizations can help find a temporary safe place for a pet, eventually, a pet’s permanent home will need to be determined. Attorney Arkady Bukh, Esq., of the Bukh Law Firm in New York says that pets rarely came up in divorce proceedings in the past, but in recent years, “they appear in about 50 percent of the cases,” and of those, more than a handful “get ugly” when it comes to establishing pet ownership.

So, what can you do if you know your beloved four-legged pet would be better off with you? We asked Bukh for his legal advice, and as well, provide a video from Lisa McCurdy, an attorney who knows what happens when the custody of a pet is disputed when a couple separates. She addresses strategies for avoiding legal intervention, ways to establish and determine pet "ownership," and what to do once the courts get involved. She also examines the challenge presented by animals legal status as "property" in disputes over pet custody.

DS.org: When a couple are separating or divorcing, and domestic abuse is present, have you seen the abuser try to use the pets as leverage, or as a means to gain power and control, over their partner?

Bukh: Definitely. In the past several years, as more people get divorced without having kids, custody of the pets has become a much bigger issue. I've seen situations where one partner uses custody of a dog or cat as leverage to try to get his ex to agree to a less favorable division of property. The person with the biggest emotional attachment to the pet is vulnerable to this type of exploration

Pets are often a big issue in cases of domestic violence as well. People often won't leave an abusive partner because they are worried domestic violence shelters won't take pets or because they're afraid their ex will hurt the animal if they leave. Most people don't know the laws in NY on restraining orders were amended in July of 2006 to allow for protection of companion animals. [Laws in many other states allow pets to be included in orders of protection as well. See what the law says in your state. People need to be more aware of the protections available for pets, which is why it is a good idea to talk to a lawyer if a partner is abusive or if a spouse is using a pet as leverage and isn't being reasonable in negotiating a divorce settlement.

DS.org: If the survivor wants to get sole custody of their pet, what sort of documentation should she or he compile before going to court?

Bukh: For a long time, pets were just treated as property and the emotional attachment people have to their pets wasn't recognized. This meant courts would try to trace back who was the legal owner of the pet. If one person bought the animal, for example, or if the animal was licensed in one person's name, this could be determinative. Showing receipts for payment of the animal was paramount. A shift has been occurring though. In 2013, in Travis v. Murray, the court recognized that pets really aren't just property. If the family court judge recognizes the emotional attachment to the pet, the key issues relate to who bore the bulk of responsibility for the pet's care, who spent the most time with the pet and who kept the pet after the separation. Courts aren't [likely] to order visitation, so it's important to be able to make the most convincing case possible because pet custody is an all-or-nothing proposition right now.

What Else Can Help?

It’s always good to be over-prepared, so the more evidence you can bring to the table showing you are the best caregiver for your pet, the better in the eyes of a judge. The Animal Legal Defense Fund recommends compiling receipts for veterinary care, licensing records, receipts for grooming, dog training classes, food and other items you purchased for your pets could help your case.

Secondly, they say that if your neighbors or friends often saw you being the one to walk your dog or take them to the park, they could be useful witnesses who could attest to your consistent care and interaction with the animal and, therefore, be helpful to your case. Bring this up to your lawyer.

And for more information about leaving safely with your pets, read, “ Planning for Pets’ Safety.”