Who Gets the Fur Babies? How to Ensure Pet Custody After Divorce or Cohabitation

Most animal lovers will tell you that they would do just about anything for their dog, cat or other beloved pet. In handling Texas divorce and cohabitation cases, Connatser Family Law Attorney Christine Powers Leatherberry finds that “people consider pets to be part of their families, tantamount to having a child. Often, people do a better job at working out custody arrangements for their pets than for their children – but not always.”

Put Pet Custodial Wishes in Writing

According to Christine, “Pets are considered property in Texas. Though you may consider your furry or feathered companions to be ‘family,’ pet custody is determined quite differently than child custody. If you cannot bear the idea of losing your beloved animals after splitting with a spouse or partner, consider putting your wishes in a premarital, cohabitation or partition agreement.”

“In child custody and visitation cases, the judge always has the final say regarding custody arrangements and is guided by the best interest of the child or children. However, in cases of pet custody, the judge will consider written legal agreements, such as premarital, cohabitation or partition agreements, that explicitly spell out ownership of the pet should the relationship dissolve, the character of the pet (if the pet is one party’s separate property or community property), and if the pet is community property, what the parties’ individual roles and responsibilities pertaining to the pet have been during the marriage or relationship,” says Christine.

Pet owners should also keep in mind that “laws pertaining to pet custody could change at any time, so it’s a good idea to spell out wishes regarding the pet in a marital agreement,” Christine advises.

Factors Judges Weigh to Determine Pet Custody

“As with any complex property settlement case, the judge needs to determine whether the animal is community property (pet acquired during the relationship or offspring of pets born during the relationship, even if the “parent pet” was separate property) or separate property (pet acquired prior to relationship or gifted to one party during relationship). However, if the pet is community property, the judge’s inquiry will go deeper into the specifics of each party’s ability to care for the pet, what the pet’s needs are and which party is more appropriate to care for the pet long-term,” Christine says. Judges will also take into consideration:

  1. Which party has played the role of primary caretaker?
  2. Who has been meeting the daily needs of the pet/s?
  3. Has either party neglected the animal/s in any way?
  4. What are each party’s typical work and travel schedules?
  5. What is the possession and access schedule of the children if they have a close relationship to the pet? It’s common for the pet to be awarded to the primary parent of the children.

“Along with placing a pet in the environment that best meets its needs, judges do tend to keep pets with children in case of divorce,” says Christine.

How Judges Handle Pet Visitation

With human children, judges will weigh the facts and award a visitation schedule accordingly. According to Christine, “In pet custody cases, judges do not award visitation schedules, though in some cases they will enforce such arrangements if both parties are in agreement. Again, explicit agreements spelled out in a premarital, cohabitation, or partition agreement can help simplify pet custody issues.”

Where multiple pets are involved, the animals may be split between the two parties. For example, Christine has seen cats awarded to the party who travels or works more and dogs awarded to the party who does not have such a busy schedule. In some rare instances, a judge may even order a pet sold and the monies received be divided between the parties.

Plan Ahead to Maintain Pet Custody in Texas

While a judge will have the final say, a legal agreement can help ensure you maintain custody of your beloved pets should your relationship dissolve. Likewise, parties should consider maintaining proof that a pet was given to them as a gift during the marriage to support its separate property character.

For example, a photograph of a party opening a box with a puppy in it Christmas morning or a greeting card mentioning the furry present can be proof of a gift. It’s also a good idea to keep copies of any financial documents pertaining to the purchase of your pet. Then contact an experienced family law attorney in Texas who can explain the options available to you as a pet parent.

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