Who Gets Fido? Who Gets Tigger?

The 2016 movie “True Blood” depicted a divorcing couple fighting over custody of their dog.  Although clearly a fictitious tale designed to evoke laughs, the comedy portrayed a key source of conflict in many separations.  Real life divorce actions have long been witness to fights over the custodianship of pets.

The vast majority of dog and cat owners view their pets as members of the family.  To the contrary most states do not agree, labeling pets as personal property, not unlike the furniture, the art or the investment accounts.  As a result, in determining ownership rights, the court may look to trace proof of ownership – purchase records, local licenses, and the like.  The “owners”, however, may focus on what is best for the pet.  Not unlike awarding custody of children, the best interests of the pet are typically the stance taken by feuding pet “owners.”  Who walks the dog?  Who takes the dog to the vet?  Who feeds the dog?  Who does the dog curl up with when the couple watches television?

Siding with dog and cat owners and accepting the notion that pets are indeed viewed as beloved members of the family, it is logical to pose the question: How should a divorcing couple approach custody of their pet?  Not surprisingly, we at The Centre for Mediation and Dispute Resolution suggest that you include, in your divorce discussions and your settlement agreement, the custodianship, and care of pets.  Regardless of whether the court will enforce your agreement (believing that “personal property” rights are determined at the time of divorce and care of pets is unenforceable), you and your spouse should fashion an agreement that represents your future care of pets.

The following areas should be included in your discussions:

• Will the dog or cat have one primary residence or two? (In effect this translates to primary custodianship or shared custodianship.)
• If the custody is shared, you will need to structure a schedule for time in each household, including delineation of blocks of time, transfer times and responsibility for transportation.
• If the pet has a primary residence but the other spouse has, in effect, visitation rights, this too needs to be stated with times/dates delineated or times when they will be scheduled in advance.
• Do you need an agreement on terms for exercising the pet?  For grooming the pet?
• Payment of pet-related expenses, including routine expenses such as food and, if applicable, more extraordinary expenses, such as dog walking and boarding of pets.
• Payment of veterinarian costs for routine care and responsibility for taking the animal to the vet.
• Decision making for extraordinary medical expenses and responsibility for payment which could be one person’s liability or equal sharing of costs or proportionate sharing with defined percentages for each one’s liability or how you will calculate, if needed, each party’s proportionate share.
• What happens if there is a relocation of either party, making the agreed upon custodial arrangement difficult to uphold?
• If the couple has children, is there any connection between the children’s residency and the residency of the pet(s)?
• What happens in the event of the death of a custodian?
• What happens in the event of the death of the pet?  Terms, if any, for pet’s burial, cremation and the like?

These questions may seem unnecessarily detailed.  Some couples reach agreement on the care of pets with ease.  Others debate every detail and dissect each point.  Regardless of hard or easy decision making, the takeaway from this article should be obvious.  Where pets are part of the household you, as the custodians of beloved members of your household, need to map out a future “parenting plan.”  Mediation provides an environment conducive to determining the future care of your pets.  The mediator’s responsibility is to help you identify the questions that you need to answer and to facilitate the exploration of different options in order to fashion an agreement that works for the family and for the pet.