Best Interest of your Pet?

On National Pet Day, we take a peek into how California family law judges now try to look more to the best interests of the family pet in a legal separation or divorce, when deciding which pet parent should have ownership of the beloved animal.

A Macaw, an Australian Shepherd, a Boxer, a Yorkshire Terrier pup, and Persian cats, are just a sample of the feathered, furry, and feline friends our attorneys and staff care for at home. Though we love and protect them, we realize that these household pets, like yours, have no legal or civil rights of their own, and existing laws only protect their humane treatment by us all (CA Penal Code §§596, 597, 598; CA Civil Code §43.100; CA Health and Safety Code §122335). Because, as heartless as it sounds, their legal status as only that of “property”, a thing, is subject to our control as owners. In a legal separation or divorce, property – specifically, our dear pets – can be granted to one spouse, considering whether the animal was acquired during marriage (FamC §760) or whether the animal was owned before the marriage (but, if during the marriage, also whether the spouse acquired the animal by gift, bequest, devise or descent) (FamC §770); however, family law courts have always had to divide the community estate equally if there is no prior agreement, with exceptions (FamC §§2550, 2600 et seq.).

Up until recently, if a dispute arose regarding ownership of the pet, judges may have looked at just documented ownership found in licensing records, registrations, the animal’s service benefit to a spouse, and veterinary records, for examples. Since January 1, 2019, our family law judges have been equipped to do more for the animal. It was just chattel before, a property item that was going to be divided.

Section 2605 of the California Family Code, added January 1, 2019, is the codification of our legislative effort to better allowing the courts to consider the best interests of these animals after all, in a similar way that judges consider a child’s best interests when making orders for custody and visitation of the child. We think Section 2605 has provided the rule for determining custody of the family pet, where the words, “ownership” and “custody” now are effectively interchangeable, at least in meaning, because our family law courts have the authority to not just grant only one pet parent ownership, but family law judges can enter orders to determine joint ownership of a pet animal too, based on the “care” of the animal.

Section 2605(c)(1) defines “Care” to include, but not be limited to, “the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.” No longer relying on just ownership documentation, family law judges can seek the protection of a family pet’s safety and welfare in making pet ownership determinations, similar, to an extent, to how they make child custody determinations based on how far each parent has gone to protect the child’s safety and welfare (FamC §3011).

For now, it is well that Section 2605 at least acknowledges our family pets as important living, breathing, and familial members that deserve to be with a pet parent that cares. In line with the laws protecting the humane treatment of animals, Section 2605 serves to give pet parents who care, a better chance at ownership. If you are about to, or are already going through a legal separation or divorce, and you have a feathered, furry, or feline (or scaly) friend, let us help you.

The Edgar & Dow is a prominent Southern California law firm with offices in Riverside, Temecula, Orange, and Palm Desert. They handle family law, juvenile dependency and guardianship matters.