Custody disputes about cats and dogs are not decided like child custody cases. The court will not decide which animal is cuter; it will not decide which of the two owners has taken better care of the animals. Instead it will look at factors such as which owner would give the pet a better home, who would spend more time with it, where the animal was purchased, and so on. So the key question in any divorce-related dispute over pets is probably what kind of pet you have.
“If they had to decide custody of a horse,” one lawyer told me, “it would be based on a series of factors that include who bought it and how much money they have to take care of it.”
I didn’t ask him which spouse would win that case.
Divorce courts decide custody battles between parents, who are people. Courts have no experience dealing with the issues that come up in custody battles over pets, and so they make it up as they go along. Often they base their decisions on the best interests of the pet, but what exactly that means has varied from judge to judge and state to state.
No one knows how many pets have been involved in divorce proceedings. Pet custody cases are not always included in surveys of divorce-related cases, because the category “pet” is not the same as “child.” Also, some people might be embarrassed to admit getting a divorce just because they can’t agree on who gets custody of the iguana.
Cats and dogs are property, and are treated as such in divorce court. That’s what the judge will think about when making a custody decision. If the dog is a purebred worth $2000, the judge may ask whether you have the right kind of insurance to cover the replacement cost. (The answer is usually no.)
If you have a cat that’s worth $5000, you’re out of luck: they don’t make bonds for cats in divorce court. There are probably not many divorces over custody of large dogs; we don’t really know what to do with them, but we’re pretty sure it’s not by locking them in a cage and trying to determine which one of two people should get to feed it. You should know that it’s not about who brushes it more or spends more time with it.
Cats and dogs are just property, like tables and chairs, so how do you decide who gets custody of them in divorce court?
The problem is that unlike tables and chairs, cats and dogs cannot be assigned monetary value. They have no price, which is why they’re property to begin with. The law requires a price to be set, but there is none.
You can only sell or give away a cat or dog if you find someone willing to pay the price you want. If a court has to assign a monetary value to a cat or dog, it will have to guess what the cat or dog is worth. If it guesses too low, the spouse who gets the cat or dog will have paid too much for it; if it guesses too high, the other spouse will have been cheated out of money they would otherwise have had.
We have all seen movies in which dogs are the center of attention, but in real life, cats have the upper paw. This is because the custody of cats and dogs is decided not by their intelligence or personality but by whether they are legally property.
In a divorce proceeding, judges decide who gets what property. But this is not as simple as it sounds. If someone owns a Picasso, for example, you can’t just give it to someone else; that violates the owner’s right of ownership. So instead, you must pay him for his Picasso in money.
But what do you do if there is no money? Say an estranged couple owns a house together: how do they divide it? The answer depends on where they live. In some states, courts simply give each spouse half the value of the house; other states say that if there are minor children involved, then one spouse will get the house and the other will get the cash equivalent.
If they own a dog or a cat, there is no clear way to divide it, since these animals have no market value. Some states’ courts will try to split custody 50-50; others divide them based on who had custody when the divorce was filed; others award custody according to who has taken
In most states, the judges have to decide based on which parent is more likely to provide for the cat or dog’s welfare.* The theory is that neither party will have a financial incentive to mistreat the animal, because it would diminish their chances in future custody battles.
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