When we hear about a divorce, most people’s immediate thoughts go to issues such as child custody and property settlement. But for families with pets, many who consider these pets as parts of their family, there is another issue: what to do in terms of custody of the animals. [Please take special note that this article deals with the issue of contested custody/ownership of an animal between former spouses or partners, not an agreed upon property settlement.]
The law in Pennsylvania is quite clear: pets are “chattel.” What this means is that pets, like your beloved Labrador Retriever or Himalayan kitten, are viewed under the law as “personal property” in a light analogous to a kitchen table or television. Pennsylvania is certainly not alone in this stance, as pets are considered personal property in many states. Pennsylvania applies what is known as an “equitable division” scheme for distributing personal property upon divorce. The court’s goal in an equitable division is to be fair, which means the division does not need to be equal.
While Pennsylvania courts are generally in favor of child custody agreements worked out between spouses when it’s in the best interest of the child, if a divorcing or separating couple attempts to draft an agreement regarding shared custody of a pet, it is unlikely that such an agreement will be upheld. For example, in DeSanctis v. Prictchard, the Pennsylvania Superior Court invalidated a provision in a property settlement agreement between a former husband and wife providing the wife custody of the couple’s dog while the husband received visitation. The Court, in explaining its decision refusing to enforce any custody arrangement regarding the pet, stated that enforcing such a custody agreement would be “analogous, in law, to a visitation schedule for a table or a lamp.” [Ouch!]
To date, many courts confronted with contested pet custody stick to the equitable distribution test, holding that pets are personal property which must be awarded to one party as part of a fair distribution of property. Parties may certainly attempt to enter into their own custody agreement, and if both parties abide by it, that is an amicable resolution. However, any agreement as to shared custody of a pet, if violated, will likely not then be enforced by the courts. Simply stated, just like a piece of furniture, pets are not subject to custody or visitation agreements.
As previously stated, since animals are considered property, the court’s role is to fairly (not equally) divide ownership of the pet as part of the distribution of property. If it gets to court, a judge can and will award ownership to only one party. However, there are still options available to negotiate and push for ownership of your pet, such as a property settlement agreement, but recognize this may require you to forfeit other assets during negotiations.
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