Contributed by Law Clerk, Matt Campbell.
People may fight like “cats and dogs,” but no matter their rage, many Americans take one look at their furry friends and their brain is instantly flooded with nothing but positive emotions. Whether you’re a “dog person,” a “cat person,” or even a “snake person,” we often think of pets as “man’s best friend,” which makes it even more important to keep the pet’s best interests in mind at all times. However, most states do not require judges to consider an animal’s well-being in divorce or custody cases.
When a couple separates or divorces, one of the most commonly contended issues may be which spouse should be awarded the possession, ownership, or custody of their pets, or should be allowed visitation. However, in the majority of states, when families decide to separate, pets are classified as chattel– “no different from the silverware, the plasma TV, and the living-room sofa”–a classification which seems outdated and suboptimal for dealing with pet custody issues. While a few states have codified laws that require judges to consider the welfare of the animal, the legal status of pets as mere items of personal property must adapt to meet the evolving status of pets in modern society.
Alaska changed the legal landscape in 2017 as it was the first state to codify into law that judges must consider the welfare of the animal involved and is the first to explicitly allow joint ownership of a common animal. Unfortunately, Arkansas has lagged on this issue and still views pets as personal property; therefore, Arkansas courts may not allow for “pet custody” agreements and instead, as with a house or a car, the court may order the pet to be sold and the profits to be split between the couple. While this is an unlikely outcome, if the divorcing couple cannot come to an agreement, then a judge may feel compelled to take this route. Another possibility is that the spouse not awarded the pet could be awarded the “cash value” of the pet in order to compensate for the unequal loss, and as inhumane as this seems, it is the court’s only way of equitable distribution of property since a pet is still considered “property” in Arkansas.
To avoid these outcomes, the divorcing couple should agree to terms on a “pet custody agreement.” This agreement is much like a child custody agreement and divorced couples should consider:
· The pet’s primary caregiver/owner (who will take care of the pet the majority of the time and whom does the pet live with most of the time?)
· A visitation schedule
· Division of costs (veterinary care, food, and other daily necessary items)
When developing a case for which person is the best caregiver, things considered includes who has the means, space and time to devote to the pet. A child’s attachment will also be considered in these types of cases. If a child is attached to a pet, the court will often allow the pet to stay with the child resulting in the pet living with the child’s primary caregiver.
In sum, even though Arkansas has refrained from removing the “property” tag on animals, divorced or separated couples can reasonably come to terms regarding their pets, and if not, it may be in their best interest to use a mediator. Several attorneys at Miller, Butler, Schneider, Pawlik & Rozzell have practiced family law for decades and can understand your needs and advocate accordingly. Additionally, Mary Schneider is a well-known mediator, and she is here to help when domestic disputes cannot be resolved between the partners.