By Sara Pitcher
Companion animals have been elevated to a new position in many families over the past decade. Pets are now treated as a part of many families.
However, when a couple divorces, there are no standards in place to protect the pet and to make sure the best interests of the animal are taken into consideration in determining possession of the animal.
While pet custody battles are becoming more popular, judges still have no concrete standard to apply to determine custody or possession of a pet, even though pets are treated as property in a divorce.
There has been a trend developing where custody disputes over animals are beginning to resemble those over custody of children. This growing attitude toward animal custody disputes is attributed to pets’ evolving status in the family.
Statistics show that 71 million American households have at least one pet. According to another survey, 73 percent of dog owners and 65 percent of cat owners consider their pet to be like a child or member of their family.
It has also been reported that 42 percent of dogs sleep in the same bed as their owners. Based on these statistics, it is not surprising that pet owners are fighting over possession of their pets in divorce proceedings.
Pets and other animals are considered property for the purposes of division of property in divorces. Unfortunately, most courts award pet possession based solely on the ownership rights of the parties, not based on the best interests of the pet.
In some states, pets are considered jointly owned marital property and they are sold if the divorcing couple cannot agree on who gets to keep them. The parties then split the proceeds of the sale.
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Most courts have been reluctant to move away from the traditional view that animals are mere chattel because “the law doesn’t see pets as much different from any other property that is divided on the basis of equitable distribution. Even when judges recognize that pets have a special place in a family’s life, the law may not support that recognition.”
Courts that decide ownership based on property law must place a monetary value on the pet under the doctrine of equitable distribution to ensure that both parties receive a fair share of the estate.
Pets Are More Than Property
A few courts have continued to acknowledge that animals occupy a special place in their owners’ hearts and animals should have protections more than that of traditional property. Some courts have even made rulings based on the elevated property status of companion animals, awarding custody instead of possession of the animal.
“While some judges have declined to look to a new standard in determining pet possession, the law has begun recognizing that animals have basic needs and an owner that fails to meet those needs will be in violation of Animal Cruelty statutes designed to protect the animal.”
Some recent statutes have provided more and more protections for animals, suggesting that they hold an elevated property status.
Animals are protected by animal abuse and neglect laws that require that animals be fed and their basic needs met and that they are protected from abuse. Animals must be treated humanely.
Many judges however are reluctant to follow a best interest of the pet theory that has been sporadically applied and most jurisdictions continue to hold that animals are merely property to be divided between divorcing spouses.
 Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 U. Colo. L. Rev. 181, 185 (Winter 2003).
 Emanual Grinberg, With Pet Custody Battles on the Rise, Courts are Treating Animals More Like Children, (Jan.7, 2004), http://news.findlaw.com/court_tv/s/20040107/07jan2004171733.html.
 Rachel Hirschfeld, Ensure Your Pet’s Future: Estate Planning for Owners and Their Animal Companions, 9 Marq. Elder’s Advisor 155, 155 (2007).
 Huss, supra at 196-197.
 Hirschfeld, supra.
 Huss, supra at 229.
 Sally Kalson, In Pet Custody Battles, Courts Treat Animals as Property, Pittsburgh Post Gazette (June 25, 2006), http://www.post-gazette.com/pg/06176/700469-51.stm.
 Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182, 183 (City Civ. Ct. 1979).
 Houseman v. Dare, 405 N.J. Super. 538, 545 (App.Div. 2009).
 Heidi Stroh, Puppy Love: Providing for the Legal Protection of Animals when their Owners get Divorced, 2 J. Animal L. & Ethics 231, 231-232 (May 2007).
 Huss, supra at 196.