The answer is mostly “yes” and judges typically have looked at pets as personal property and considered the usual factors in this analysis. However, in recent years pets, particularly dogs, have been the focus of custody disputes between two divorcing spouses. Traditionally, judges in making a determination about the division of property including pets, haven’t had to consider what is in the best interest of the property. Yet recently with some of these disputed dog custody cases, judges have been forced to do just that. They evaluate which spouse spends more time with the animal or is primarily in charge of its care in determining custody. Judges have even awarded “petimony” for the maintenance of the animal paid to the custodial owner from the non-custodial owner.
Is This Creating New Law Regarding the Status of Pets?
More and more courts are looking at these factors that go beyond the traditional notions of property analysis when making a determination about the custody of a disputed pet. This may eventually lead courts to create a doctrine of “living property” as coined by Michigan State University College of Law’s Animal Law Professor David Favre. He defines living property as “physical, movable living objects- not human- that have an inherent self-interest in their continued well-being and existence.” (David Favre, Animal Law: Welfare, Interests, and Rights 36 (2008). While this would allow pets to remain property in status, it would force the law to consider the pet’s well-being in making determinations about it’s future. Obviously, such a change in status could impact the treatment of a pet after the owner’s death and normalize the consideration of pet care after the owner is deceased or incapacitated. Click here for more on this topic.